United States v. Collin Hawkins, 599 F. App'x 485

In Nov. 2006 Hawkins participated in a Baltimore taxi carjacking; a warrant issued later.
On Dec. 9, 2006 police (unaware of the arrest warrant) learned from an informant that “Slankru/Ru” (Hawkins) was en route to an Exxon and had shot an officer; officers surveilled the station.
Officer Painter observed Hawkins twice tugging at his right waistband, approached in uniform, saw Hawkins reach again, drew his weapon, ordered Hawkins down, and physically subdued him after Hawkins repeatedly reached his waistband; a handgun was recovered.
Hawkins was tried and convicted on three counts (carjacking, brandishing firearm, and felon-in-possession); this court reversed the carjacking and brandishing counts on appeal for improper joinder and remanded Count Three for resentencing.
On remand the Government declined to retry Counts One and Two; Hawkins was resentenced to 63 months on the felon-in-possession count and appealed, arguing (1) the gun should have been suppressed (Fourth Amendment) and (2) appellate counsel was ineffective for not raising suppression on the first appeal.

Issue	Plaintiff's Argument (Hawkins)	Defendant's Argument (Government)	Held
Whether the handgun seized at the Exxon should be suppressed under the Fourth Amendment	Seizure was unlawful; evidence should be suppressed and conviction reversed	Mandate rule bars relitigation because suppression claim could have been raised on the first appeal; alternatively seizure was lawful under the circumstances	Held: Mandate rule bars the Fourth Amendment claim; no exception applies
Whether appellate counsel was ineffective for not raising the suppression issue on the first appeal	Counsel was deficient for not raising the Fourth Amendment claim on initial appeal, causing waiver	Appellate strategy was reasonable (focused on successful joinder/severance challenge); no conclusive record of ineffectiveness; claim should be raised, if at all, via §2255	Held: No cognizable ineffective-assistance claim; presumption of effective assistance not overcome; claim fails

Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474 (4th Cir. 2007) (describing the mandate rule as application of law-of-the-case doctrine)
United States v. Bell, 5 F.3d 64 (4th Cir. 1993) (mandate rule exceptions and limits)
Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502 (4th Cir. 1992) (arguments that could have been raised on initial appeal are foreclosed on remand)
United States v. Briggs, 720 F.3d 1281 (10th Cir. 2013) (waistband-touching can be probative of firearm possession)
United States v. Humphries, 372 F.3d 653 (4th Cir. 2004) (officer observations of waistband conduct considered in totality of circumstances)
Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (applying Strickland standard to appellate counsel; emphasizing reasonable appellate winnowing)
United States v. King, 119 F.3d 290 (4th Cir. 1997) (ineffective-assistance claims generally brought under 28 U.S.C. §2255)
Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)