*1 for an We review abuse of discre the case is remanded for proceedings further District Court’s decision not to hold consistent opinion. tion the with this evidentiary hearing an on Shaw’s ineffective States, Widgery v.
ness claims. United Cir.1986). (8th 223, 224
F.2d court must The evidentiary hearing “[u]nless
hold an the mo
tion and files records of the case
conclusively prisoner show that the is enti § tled to no relief.” 28 U.S.C. 2255. Ac America, UNITED Appellee, STATES of cordingly, may a claim be dismissed without evidentiary hearing if the is claim inade Gregory quate BLOOMFIELD, on its face or if the record B. affirmative also ly the factual assertions upon refutes which it known as Earl Marcum States, Johnson, Appellant. is Larson v. based. - Cir.1990), 220-21 No. 93-2970. U.S.-, L.Ed.2d (1993). United States Appeals, Court of Eighth Circuit. claim, essence,
Shaw’s reduced to its rely is that his trial counsel failed to on Submitted Nov. 1993. exceptions rape-shield law would May Decided 1994. have allowed for the admission of evidence Granting Rehearing Order En Banc and provided jury that would have with an Vacating Opinion Judgment explanation alternative the victim’s July 1994. knowledge physical of sexual acts and for the intercourse, consequences of both the wid hymen diseases,
ened and the venereal government’s
shown evidence. We inadequate conclude that this claim
cannot respect face with its either the defi
cient-performance component preju or the component
dice of the Strickland test.
Moreover, generally peti as is true when the
tioner’s claim is that his trial counsel was ineffective,
constitutionally the files and rec conclusively
ords of this case do not show is entitled to no Shaw relief. proceedings
Further therefore are re-
quired remand, in this case. On the District discovery completed
Court should allow to be evidentiary hearing
and should hold an
which, among things, other the reasons for
trial boys’ counsel’s limited offer of the testi- Upon can
mony properly be ascertained. record,
developed the District Court should
apply the Strickland standard determine
whether Shaw is entitled to relief.
III. ruling dismissing District Court’s § petition premature.
Shaw’s 2255
judgment of the District Court is vacated and *2 McMILLIAN, Judge,
Before Circuit BRIGHT, Judge, and Senior Circuit 1VLAGILL, Judge. Circuit McMILLIAN, Judge. Circuit (a/k/a Gregory Defendant B. Bloomfield Johnson) appeals Earl Marcum from a final in judgment entered the United States Dis- trict for the District of Mis- Court Western sentencing sixty impris- him souri months onment, release, years supervised five and a $50.00, following special assessment of his plea guilty conditional to one count marijua- possession with intent to distribute reversal, argues na. For defendant that the denying in district court erred his motion to suppress physical evidence found a rental operating. truck he was For the reasons below, discussed we hold that the district denying court erred defendant’s motion to suppress. conviction We reverse the proceedings remand for further consistent opinion. with this 6, 1993, Trooper On March Scott Roberts Highway of the Missouri Patrol was State sitting patrol in his car on the shoulder of County, eastbound Interstate-44 Pulaski Missouri, when he observed Hertz rental traveling truck driven defendant east- ward. He followed the truck a short dis- signaled pull tance and then for it to over. p.m. The initial occurred at about 7:00 events, according relevant Roberts’ testimony suppression hearing, oc- pulled curred follows. truck as Roberts abruptly change over because he observed it signaling, lanes without and he wanted to check on the condition of the driver. As approached the driver’s side of only partially rolled down his window. Roberts asked defendant produce agree- a driver’s license and rental complied. ment and defendant The name appeared Earl Johnson on both the Marcum agreement. license and the rental Defen- nervous, appeared his dant hands were shak- ing, and he tended not to look at Roberts. Brown, Public Defend- R. Steven Federal eyes His were red and he looked tired. Rob- er, MO, Springfield, argued, appellant. step erts then asked defendant to out of the Johnson, Gregory Atty., patrol truck and to have a seat in the car. K. Asst. U.S. (Marietta squeezed Springfield, Cyn- Defendant out the driver’s side MO Parker and brief), him. Hyde, argued, appellee. thia door and then closed the door behind J. followed the truck in his car. time, noticed an odor Betts At that suppres- Roberts testified that en route defendant at the truck he described which odor, slowly righthand masking heavy, drove and veered onto the hearing “a as sion shoulder several times. of a smell.” strong odor deodorizer *3 office, ac- At the zone Roberts conducted a requested, had defendant As Roberts defendant, sobriety patrol ear Rob- field test on which defen- him to the where companied passed. drug dog arrived at activity report and ran a dant out an erts filled approximately zone office one hour after the driver’s license. The cheek on defendant’s dog positively agreement both initial had occurred. The and the rental license responded to the truck. Defendant was then in order. While the two were checked out as car, ques- placed troopers conduct- began under arrest. The sitting patrol in the Roberts truck, was com- ed a warrantless search of the where tioning about where he defendant they pounds marijuana wrapped going. Defen- found 797 ing and where he was from Pheonix, cellophane, compartments moving Ati- in inside freezer he dant said was in zona, doing construction and cardboard boxes. Also the truck were where he had been Carolina, home, repellent, pet work, making dog deodorizers such as deo- his to North dorizers, fresheners, Pennsyl- in “stick-em” air stain way to see his fiancee on the eliminator, Roberts, then and ammonia. According to vania. for information about his pressed defendant cross-examination, agreed that On Roberts in employer the town which his former and possible that it could have been defendant lived, specif- and defendant would not fiancee signaled change at his lane the moment the ically questions. those Roberts then answer spot. in rental truck was Roberts’ blind in the back of the asked defendant what was Trooper Roberts also testified on*cross-ex- it responded that rental truck and defendant heavy at amination that traffic was rather personal goods. and Accord-
was furniture
times,
than
fur-
and heavier
usual. Roberts
Roberts,
appeared
defendant
nervous
ing to
that,
initial
ther testified
at the time
slight-
perspiring
He was
and under stress.
stop,
permission
to leave
defendant asked
heavily,
taking deep
ly, swallowing
bathroom,
and he and Betts said
to use
he never
Roberts also testified that
breaths.
could not leave with the truck.
that defendant
they were
alcohol on defendant while
smelled
agreed that a rental truck with out-
Roberts
if
patrol
in
car. Roberts asked defendant
plates
consistent with a
of-state license
hauling drugs, weapons, or other contra-
was
profile. Roberts also added
courier
band,
respond.
to
defendant did not
which
radar
on the
that he noticed two
detectors
permission
to search the
When asked
initially
the rental
truck when he
dash of
vehicle, defendant refused.
it,
walking
that while
with
approached
car,
patrol
to the
he noticed
that he
defendant back
Roberts then informed defendant
person.
pager on
going
call for a
and immedi-
was
time,
ately
By
another state
did so.
this
ap-
that when
Defendant testified
Betts,
patrol
trooper, John
had entered
the window
proached the truck he rolled
car
seated in the back seat. When
and was
way
three-quarters
approximately
arrest,
if he was under
both
defendant asked
fully
open
not
his door
when
down. He did
told defendant
that he
Roberts and Betts
heavy
of the
flow
he exited the truck because
They
they
that
not.
also indicated
were
Rob-
highway
on the
and because
of traffic
free
going to detain the truck but
he was
standing right
to the door. He
next
erts
was,
leave,
testified
as a'
which Roberts
his driver’s
retained
testified
matter,
option given
practical
not a realistic
agreement and would not
and rental
license
they
stopped.
the location where
were
requests.
despite repeated
him to leave
allow
particularly
that he
not
the bath- He maintained
Defendant said he needed
use
fidgity during the time he was
room,
or
and Betts escorted defen-
nervous
so Roberts
detained, but was
being questioned and
of the Missouri State
dant to a zone office
suggestion
As to Roberts’
slightly
nervous.
Highway Patrol. Roberts led
his
questions about his
car,
evaded
in the
that defendant
followed
“reasonably
scope
related
defendant stated that he which
employer,
former
justified
for a
factually that he did not work
circumstances which
the interfer
answered
company
including' checking
rather worked
place,”
but
in the first
construction
ence
property
group
agree
with a small
defendant’s driver’s license and rental
Cummins,
He also testified that
deo-
maintenance.
ment. United States
-
during
dorizing
Cir.1990),
in the truck
items found
500-01
cert
cargo
located
the rear
-,
search were
116 L.Ed.2d
truck, not in the cab. Defendant
(1991)
Ohio,
of the
Terry
area
(quoting
however,
day-
noted,
(1968)
were some
that there
1868, 1879,20
rings in the cab of the truck
however,
old onion
{Terry)).
argues,
Defendant
stop.
time of the
such constitutional
his .detention exceeded
*4
and transformed into a seizure of his
limits
hearing
of the
on defendant’s
At the end
person
meaning Fourth
within the
the
the district court ruled
suppress,
motion to
Amendment,
requisite
the
level of
without
bench, denying the motion on
from the
activity
suspicion
reasonable
of criminal
re
(1)
stop
initial
was not
grounds that
the
quired
Terry.
agree.
under
We
pretextual
Roberts believed he ob-
because
change
abruptly
lanes with-
served defendant
finding
court made no
to
The district
as
(2)
had a
signaling,
out
reasonable
or when a seizure of defendant’s
whether
concluding
for
that
vehicle was
basis
the
person actually
court
occurred. The district
carrying some controlled substance because
simply concluded that no Fourth Amendment
masking
clearly
a.
odor from the
smelled
violation occurred because “Officer Roberts
(8)
truck,
the
cab of the
the duration of
concluding
had a reasonable basis for
that
wait-
while Roberts and Betts were
detention
may
carrying
controlled
the vehicle
some
dog
not unrea-
ing
for the
to arrive was
clearly
substance
that he
smelled the
(4)
circumstances, and
the
sonable under the
masking odor from the cab of the truck.”
right
the vehicle
officers had a
to search
person
a
warrant.
has been ‘seized’ within
“[A]
without
search
meaning
of the Fourth Amendment
argues
appeal, defendant
his
On
if, in
all the
surround
view of
circumstances
rights
Amendment
were violated be-
Fourth
incident,
ing
person
a reasonable
would
(1)
allegedly failing
stop
initial
cause
have believed that he was not free to leave.”
(2)
signal
change
pretextual,
to
a lane
Mendenhall,
v.
United States
his driver’s license and
the refusal to return
1870, 1877,
554, 100
ment seizure occurred: Weaver, (8th Cir.) (2) nervous, States v. appeared shaking and he were (reasonable (3) suspicion must derive from more red, eyes appeared defendant’s unparticularized suspi than an inchoate and opened partially when he exit- the door “hunch,” police identify cion or must (4) truck, strong deodorizer smell ed the particular rationally facts and inferences (5) de- emanated from inside creating drawn from those facts a reasonable wearing pager. fendant was suspicion activity), of criminal nervousness, upon being Defendant’s - -, 829, 121 car, stopped and ordered to sit (1992); Crawford, 891 F.2d at necessarily suggest not criminal con- does (same). Sustaining the search in this duct; be calm few innocent would police case would invite and detain fact that under those circumstances. The innocent out-of-state rental truck drivers red, eyes given were the distance (and others) suspicion without reasonable hour, driving evening he was and the bears activity, criminal in violation of the Fourth conduct; to criminal such condi- no. relation Amendment.1 probably typifies many long tion distance Accordingly, plea guilty the conditional highways. travelers on interstate The fact judgment of conviction are vacated. opened only partially that defendant his door This matter is remanded to the district court when Roberts to exit the truck ordered proceedings for further consistent with this explained by readily can be the flow of traf- order. fic, which, admitted, Roberts himself than heavier usual Interstate-44 eve- MAGILL, Judge, dissenting. Circuit ning. The smell that Roberts noticed when respectfully majority I dissent. The nar- may vehicle ex- defendant exited the *6 concept suspicion rows the of reasonable plained by noncriminal as well as criminal misapplies Fourth Amendment at standards reasons; example, it could have come expense the of laudable law enforcement ef- heavy-smelling from a car deodorizer. Simi- view, my In forts. officers conducted a valid larly, pagers carried for nu- are following of search defendant’s truck a law- reasons, necessarily are merous which not ful, routine, Terry stop. and rather unlawful. majority concluding The errs in that Rob- clearly that district court We hold the suspicion erts lacked reasonable to detain implicitly finding in that Roberts had erred investigate defendant to whether truck the objectively suspicion an reasonable that de- drugs. contained Defendant’s extreme ner- engaging in at fendant was criminal conduct vousness, pager carrying, the he was and the investigation the time Roberts’ exceeded the strong masking emanating odor from the scope reasonably of that related to which gave suspicion truck Roberts un- reasonable stop the basis for the initial and defendant Moreover, Terry jurisprudence. der our purposes. was seized for Fourth Amendment contrary majority’s suggestion to the in its above, The and the circumstances discussed one, footnote defendant’s detention never reasonable inferences to be drawn from length to rose the level of an arrest. The of them, collectively light in when viewed of the detention did not exceed constitutional experience, Roberts’ do not as a matter of sufficiently limits nor was the detention in- objectively fact or law create an reasonable light trusive to constitute an arrest. In detention, suspicion transporting validity the of defendant’s officers pulled highway 1. We think this case could even have been dis- over on the for a minor traffic posed grounds violation, of on that defendant was arrested required police and is then to insit probable Trooper without cause. Roberts con- question car while officers detain his vehicle and probable ceded that he did not have arrest defendant on the standpoint, cause him about matters unrelated to the initial traffic highway. From a factual stop, reasonably perceive could himself as under however, defendant was arrested. arrest, particularly walking hitchhiking where or leave, He was not free to not free to use his truck night busy highway represent at on a interstate restroom, public to travel to a and thus not free exercising means of his theoretical to decline the officers’ escort to a restroom at the "freedom to leave." highway patrol zone office. A motorist who is
1049 actually collectively,” at it id. viewed after the the truck properly searched individually re analyzes -without each factor drugs. presence of dog “alerted” others, assessing “‘In see id. gard to the degree suspicion requisite whether “ ” however, exists,’ determine “we must TERRY STOP I. collectively establish rea whether facts Roberts’ First, that Officer particu hold each suspicion, I would not whether sonable ” suspicion.’ lar fact establishes reasonable pretextual. The not stop of defendant Hawthorne, United States v. lawfully Roberts district court’s omitted). Cir.1992) (citations (8th 1189 clearly erroneous. is not stopped defendant requirement lip majority pays service this Richards, F.2d 967 See United States acknowledge the collective fails to but fact Cir.1992). testified factors.' force of the five had commit- that defendant believed majority attention Similarly, diverts with- by changing lanes a traffic violation ted inquiry by an suspicion from the reasonable gave Rob- observation This signalling. out explanations for possible innocent alyzing See cause to defendant. probable erts Thus, masking strong odor factor. each 500). Cummins( at (citing id. “may explained be that Roberts noticed reasons.” well as criminal noncriminal as that, stopping majority on agree I with the true, Ante, but This is of course at 1048. authority to conduct defendant, Roberts had Innocent point. explanations beside “ ‘reasonably relat- that was investigation an every which the ease in conduct exist justi- scope to the circumstances which ined reason stop suspects on the police basis place.’” in the first the interference fied Indeed, very purpose of suspicion. able Cummins, 920 F.2d at Ante, (quoting police pre is to allow Terry doctrine concludes, however, 500-01). iron criminals "without majority vent crimes wrongdoing. “It is not neces proof of clad reasonable without was seized that defendant reasonable sary that the which behavior questioning began suspicion when only to susceptible suspicion grounded unrelat- patrol ear “about matters in the him guilt.” United States interpretation disagree. I driving.” Id. at 1046. to his ed (citation (8th Cir.) Jones, F.2d 837,106 omitted), that defendant suspicion Reasonable (1985). Thus, appli “the 88 L.Ed.2d when defendant transporting drugs existed determining propriety *7 cable standard majority finds truck. The exited the rental the defen Terry is not whether of a insufficient following factors were that the as innocent be construed dant’s acts can suspicion to detain give reasonable Roberts specula exegetical of through the- exercise that investigate possibility the defendant they rise to an tion, give whether but rather “(1) drugs: defendant’s truck contained the articulable, criminal suspicion of reasonable appeared ner- shaking he hands were Black, 675 F.2d activity.” United States (3) red, (2) vous, eyes appeared defendant’s denied, (7th Cir.1982), 460 129, cert. 137 only partially opened the door (1983). defendant 75 103 S.Ct. (4) truck, strong a deo- the he conve when exited factors of five can That each the “exegetical away niently explained inside the with such smell emanated dorizer on whether bearing little (5) speculation” has wearing pag- a truck, suspicion existed. reasonable analysis majority’s at 1047-48. er.” Id. disregards me, well-established doubt that is little of these factors To there to believe defendant suspicion had reasonable Amendment standards. Fourth had much drugs.1 transporting First, majority evaluates improperly unparticularized an “inchoate more than Although factors in isolation. each of these decided to when he or suspicion ‘hunch’” Weaver, at 394 factors F.2d that five 966 summarily concludes defendant. it detain omitted). of (citation together, three Taken suspicion- “when reasonable do not create Ante, activity.” at in criminal was involved court com- “the majority holds that district 1. The me, had reasonable whether Roberts To 1047. finding Roberts had an that clear mitted error we review de suspicion question a of law that suspicion that defendant objectively reasonable 1050 majority First,
the factors that
enumerated
duration
the detention was rea
suspicion.
amount to reasonable
sonable under the circumstances. There is
rigid
“no
time
Terry stops.”
limitation on
First,
that
Roberts testified
defendant was
extremely
Sharpe,
675, 685,
nervous when
handed his driv- United States v.
470 U.S.
er’s license to Roberts and when he was in
1568, 1575,
(1985).
II. ARREST
minimize the intrusion on defendant.
In ad-
dition,
government
I
local
police
would also hold that defendant’s deten-
forces and the
tion did not amount to a de
highway patrol
arrest.
state
cannot
expected
to
facto
novo, although
709,
findings
we review the factual
U.S. at
Sharpe
1051
” Miller,
stop.’
course of the
“employ[ed] the least intrusive means of de- reasonably necessary
tention to achieve the Miller,
Terry stop’s purposes.” 974 F.2d at
957.
III. SEARCH
Finally, I would hold that the search of the
truck was valid. Once “alert-
ed,” probable the officers had cause to search Stone,
the truck. See United States v. (10th Cir.1989).
F.2d Under the exception”
“automobile to the search warrant
requirement, the officers then authority had
to search truck without a warrant. See Thus, marijuana
id. found the truck is
admissible evidence. For foregoing rea-
sons, I would' affirm the district court in all
respects.
ORDER motion, petition
On the court’s own
rehearing granted. court en banc is opinion judgment of the court en- May 19, 1994,
tered on are vacated. argument date bewill fixed a later
order of this court.
AFRICAN-AMERICAN CITIZENS FOR
CHANGE, Plaintiff-Appellant,
ST. LOUIS BOARD OF POLICE COM-
MISSIONERS; Conway; F. James Mischeaux; Charles Padberg; Matthew Vickers, Louis, MO, Eric St. argued, for Clarke; Bosley, Anne Marie Freeman appellant. Jr., as members of the Board of Police City Louis, Commissioners for the of St. Sulser, Louis, MO, Adrian argued St. Missouri, Defendants-Appellees. (Henry brief), Menghini, on appellee. No. 93-3438. Appeals, Court of States LOKEN, ROSS, Before Judge, Circuit Eighth Circuit. Judge, Senior Circuit and JOHN R. GIBSON, Senior Judge. Circuit Submitted April 1994. May Decided 1994. LOKEN, Judge. Circuit
Chapter 84 of the Revised Statutes of Mis- grants souri control over the St. Louis Police