                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAR 07, 2007
                               No. 06-14229                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                   D. C. Docket Nos. 04-00053-CV-WCO-2
                            02-00045-CR-WCO

NIKO CEPADA BROWN,


                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                         ________________________

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

                               (March 7, 2007)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     On December 4, 2002, Petitioner, having plead guilty pursuant to a plea
agreement, was sentenced to prison for 262 months for possession with intent to

distribute at least 50 grams of crack cocaine. We affirmed his conviction and

sentence on September 22, 2003. United States v. Brown, No. 02-16869.

      On March 9, 2004, Petitioner moved the district court to vacate his

conviction and sentence pursuant to 28 U.S.C. § 2255 on the ground that his

attorney rendered ineffective assistance of counsel by failing to file a motion to

suppress the drugs found in his automobile. Following an evidentiary hearing, the

magistrate judge, in her Report and Recommendation, recommended that the

district court deny the motion. The court did so, and issued a certificate of

appealability on one issue: “whether the failure of petitioner’s counsel to

investigate and file a motion to suppress constituted ineffective assistance of

counsel.”

      To make out a claim of ineffective assistance of counsel, a petitioner must

show that counsel’s performance was constitutionally deficient and that he was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L.Ed.2d 674 (1984). The dispositive question is “whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Id. at 686, 104

S.Ct. at 2064. “Given the strong presumption in favor of competence, the



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petitioner’s burden of persuasion – though the presumption is not insurmountable –

is a heavy one.” Chandler, 218 F.3d at 1314; see also Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994) (noting that “the cases in which habeas petitioners can

properly prevail on the ground of ineffective assistance of counsel are few and far

between”). Unless the petitioner can rebut the “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance,” he

cannot establish that counsel’s performance was constitutionally deficient.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “The test has nothing to do with

what the best lawyers would have done. Nor is the test even what most good

lawyers would have done. We ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances, as defense counsel acted at trial.”

White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992); see also Waters v.

Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (stating that “perfection is not the

standard of effective assistance”).

      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. Evidence obtained in violation of the Fourth

Amendment must be suppressed. United States v. Gilbert, 942 F.2d 1537, 1541

(11th Cir. 1991) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d



                                           3
1081 (1961)).

      In most circumstances, unless there is consent, police officers must obtain a

warrant supported by probable cause to justify a search under the Fourth

Amendment. United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005), cert.

denied, 126 S.Ct. 2966 (2006). There are, however, several exceptions to this rule,

including “the automobile exception,” which allows “officers [to] search any

container in an operational car without a warrant as long as they have probable

cause to believe that the container holds evidence of a crime.” Id. (citing

California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 1991, 114 L.Ed.2d

619 (1991)). “Probable cause for a search exists when under the totality of the

circumstances there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Id. (quotations and citations omitted). “In

examining the totality of the circumstances, a reviewing court must give due

weight to the officer’s experience.” United States v. Briggman, 931 F.2d 705, 709

(11th Cir. 1991). Another exception to the warrant requirement for a search is the

“plain view” doctrine. “The ‘plain view’ doctrine permits a warrantless seizure

where (1) an officer is lawfully located in the place from which the seized object

could be plainly viewed and must have a lawful right of access to the object itself;

and (2) the incriminating character of the item is immediately apparent.” United



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States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006), petition for cert. filed,

__ U.S.L.W. __ (Nov. 9, 2006) (No. 06-7780).

      The district court’s findings of fact demonstrate, as the court explained in its

dispositive order (which appropriately relied in part on the magistrate judge’s

findings), that the performance of Petitioner’s attorney satisfied the Constitution’s

requirement and, further, caused Petitioner no prejudice whatever. The outcome of

this case would have been the same had counsel moved the court – prior to

Petitioner’s plea of guilty – to suppress the drugs seized from the automobile. A

motion to suppress would have failed for two reasons. First, the agents saw the

drugs in plain view; second, the they had probable cause to search the car. The

agents had seen Petitioner attempt to hide drugs, which they visually identified as

such. They were in a place they had a right to be – outside the car – and they

immediately identified the item Petitioner attempted to hide as cocaine. In sum,

the search was valid under the plain view doctrine. It was also valid because, as

the district court concluded, the agents has probable cause to search the car.

      AFFIRMED.




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