Court Affirms Denial of 2255 Motion With Selective Prosecution Claim

US v. Mason: Mason was driving a car in Georgia when it was stopped for having overly tinted windows.  The trooper also suspected that Mason and his passenger were up to something because he did not pull over immediately, there was a strong air freshener smell from the car, their stories about where they were going differed, and "there was no visible luggage."  The trooper requested back up and a drug dog, noting that "these guys are spooky, spooky."  He later said that he "felt like we were fixing to have a violent confrontation" because Mason and his passenger were "older black males that are not in good shape" and they were likely "ready to shoot it out."  Mason refused to consent to search.  The drug dog arrived (after Mason got a ticket for the tint), alerted and 10 kilograms of cocaine was found in the trunk.

Mason was charged in South Carolina was conspiracy to possess with intent to distribute more than five kilograms of cocaine.  After the district court denied his motion to suppress, he went to trial, where the passenger was the primary witness against him.  In addition, a recording of a conversation between Mason and the passenger in the back seat of the cop car was introduced.  During closing argument, the Government argued that in the conversation Mason didn't express much surprise at the cocaine being found in the trunk.  The jury convicted Mason and he was sentenced to life in prison.  His conviction and sentence were affirmed on appeal.  Mason filed a 2255 motion alleging that his trial and appellate attorney had been ineffective, which the district court denied.

On appeal, the Fourth Circuit affirmed the denial of Mason's 2255 motion.  The court rejected Mason's argument that counsel was ineffective for not pursuing a claim that he was subject to "racially selective law enforcement," calling such a claim "a long shot," particularly when compared to the Fourth Amendment argument that counsel did raise.  Mason could point to no Supreme Court or Fourth Circuit cases where such a claim had been successful.  Nor did the district court err by not holding an evidentiary hearing on the issue.  The court also rejected Mason's argument that trial counsel was ineffective for not properly challenging the Government's use of his post-arrest behavior during closing argument.  The recorded conversation was done after Miranda warnings were given, was not custodial, and had no police involvement at all.

Judge Gregory concurred and dissented, arguing that Mason's trial counsel was ineffective for not even investigating the potential equal protection claim, based on the testimony of the officer during the suppression hearing.