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.
2

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 
3

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. 
4

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 
5

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 
6

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 
7

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. 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 
14

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 
15

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 
16

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 
17

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.
18

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 
19

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 
20

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
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 
22

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
23

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 
24

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).
25

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”).
26

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 
27

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.
28

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 
29

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.