USCA4 Appeal: 22-6923 Doc: 74 Filed: 01/22/2025 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6923

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALLEN WENDELL MCNEIL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:18-cr-00436-D-1; 5:21-cv-00384-D)

Argued: September 25, 2024 Decided: January 22, 2025

Before GREGORY and HARRIS, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Gregory and Judge Gibney joined.

ARGUED: Eva Grace Stieglitz Shell, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Andrew Kasper, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Erica Hashimoto, Director, Mary Conley, Student Counsel, Steven J. Salva, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Michael F. Easley, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 22-6923 Doc: 74 Filed: 01/22/2025 Pg: 2 of 17

PAMELA HARRIS, Circuit Judge:

Allen Wendell McNeil pleaded guilty, without a plea agreement, to charges

involving marijuana distribution and firearm possession. He now seeks relief under

, alleging that his trial counsel provided ineffective assistance in violation of

his Sixth Amendment rights. Specifically, McNeil argues that his counsel failed him twice

over: by not moving to suppress evidence derived from a search that purportedly violated

his Fourth Amendment rights, and by ignoring his repeated requests to seek out a plea

agreement with the government. The district court dismissed McNeil’s § 2255 petition

without an evidentiary hearing, and we granted McNeil certificates of appealability.

For the reasons given below, we conclude that McNeil’s ineffective assistance

claims cannot be resolved on the minimal record before us. Whether McNeil’s counsel

performed ineffectively can be determined conclusively only after further factual

development. Accordingly, we vacate the district court’s judgment and remand for an

evidentiary hearing.

I.

A.

The events giving rise to this appeal occurred in September 2018, while police

officers in Fayetteville, North Carolina, were patrolling the area around the home of Allen

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Wendell McNeil. 1 The officers observed a car with two occupants do a U-turn at the end

of McNeil’s street and stop in front of his house. They continued to watch as a female

passenger exited the car and approached the front of McNeil’s house, but at that point, they

briefly lost sight of her. A few minutes later, the officers conducted a traffic stop of the

car for an unspecified “regulatory violation,” during which they questioned the car’s two

occupants about their visit to McNeil’s home. J.A. 121. Receiving no “clear answer,” the

police searched the passenger and recovered a small bag of marijuana. Id.

Without a warrant, the police then went to McNeil’s house to conduct a “knock and

talk.” J.A. 115. At the front door, an officer – in his words – “made contact with [] two

juvenile subjects” who were “inside by themselves.” J.A. 119. McNeil’s sworn § 2255

petition provides more detail, attesting that his “children answered the door and said [he]

was not at home.” J.A. 92. The officers nevertheless walked around to the back of

McNeil’s house and entered his backyard. There, they approached what they described as

a “small shed.” J.A. 121. When they knocked on its door, McNeil answered and the

officers “immediately observed a strong odor of raw [m]arijuana.” Id.

Based on that odor, the police detained McNeil, took a Mirandized statement from

him, and conducted a protective sweep of the shed. They then obtained a search warrant

for McNeil’s property. All told, the police seized marijuana, money, and guns from

1 Unless otherwise noted, the facts recounted here are taken from police reports and the warrant application for McNeil’s home, attached to McNeil’s § 2255 petition.

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McNeil’s property, which, together with McNeil’s incriminating statements, led to the

criminal charges in this case.

B.

McNeil was charged with three counts: (1) possession with intent to distribute

marijuana in violation of

(a)(1), (2) possession of firearms in furtherance

of a drug trafficking crime in violation of

(c)(1)(A)(i), and (3) possession

of firearms after a felony conviction in violation of

(g)(1), 924. Apart

from a request to continue proceedings for thirty days, McNeil’s counsel filed no motions.

According to McNeil, his counsel also ignored his “numerous requests” to engage in plea

negotiations on his behalf. J.A. 89.

At his arraignment, McNeil pleaded guilty to all three charges without a plea

agreement. The district court imposed a sentence totaling 114 months (or nine-and-a-half

years) in prison, within the advisory Sentencing Guidelines range. We affirmed McNeil’s

criminal judgment and sentence on direct appeal. United States v. McNeil,

, 919 (4th Cir. 2020).

C.

That brings us to McNeil’s timely filed, pro se § 2255 petition, the subject of this

appeal. As relevant here, McNeil raised two sets of Sixth Amendment claims of ineffective

assistance of counsel. The first related to the police officers’ warrantless entry into his

backyard, from which the officers were able to approach his shed. According to McNeil,

the police violated the Fourth Amendment when they entered his curtilage after being told

he was not at home, and his trial counsel was ineffective for failing to file a motion to

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suppress the evidence that resulted from that illegal intrusion. In the same vein, McNeil

faulted his counsel for failing to investigate the traffic stop that led the police to approach

his house and set in motion the warrantless search of his curtilage. McNeil’s second claim

involved his counsel’s alleged failure to pursue a plea agreement with the prosecutor in his

case, notwithstanding his repeated requests that she do so. According to McNeil, there was

a “complete breakdown in attorney-client communications,” with counsel refusing to

engage with him at all. J.A. 110. McNeil moved for discovery and an evidentiary hearing

to find out why his attorney did not attempt to negotiate a plea deal. 2

The district court dismissed McNeil’s § 2255 petition for failure to state a claim, see

Fed. R. Civ. P. 12(b)(6), without holding an evidentiary hearing. McNeil v. United States,

No. 5:18-CR-436-D-1,

(E.D.N.C. July 27, 2022). With respect to

counsel’s failure to file a motion to suppress, the court applied the standard articulated in

Grueninger v. Dir., Virginia Dep’t of Corr.,

, 524–25 (4th Cir. 2016), under

which an unfiled motion of “some substance” calls into question counsel’s performance,

and a motion that is “meritorious and likely [to be] granted” is required to show prejudice.

McNeil,

, at *4. Here, the court concluded, McNeil could make neither

of those showings, because his Fourth Amendment claim was “frivolous.”

(reasoning,

in full, that “the knock and talk complied with the Fourth Amendment”). Accordingly, the

2 McNeil also alleged that if the government had offered a plea agreement, his counsel never conveyed that offer to him, and McNeil sought discovery and an evidentiary hearing on that question, as well. Unless otherwise noted, we, like the district court, treat these related claims together for purposes of our opinion.

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court held that counsel was not ineffective in failing to file a motion to suppress or in failing

to investigate the traffic stop that preceded the entry onto McNeil’s curtilage.

As for counsel’s alleged failure to seek a plea bargain with the government, the court

ruled that McNeil’s “sworn statements during his Rule 11 proceeding” – the hearing at

which he entered his guilty plea – precluded his claim of ineffective assistance.

.

The court pointed to cases holding that statements under oath during a Rule 11 hearing

typically bind a defendant and foreclose contradictory allegations in a subsequent § 2255

petition. See id. (citing, e.g., United States v. Moussaoui,

, 299–300 (4th Cir.

2010)). And here, the court explained, “[a]t his Rule 11 hearing, while under oath, McNeil

affirmed he was fully satisfied with counsel’s services” and with his guilty plea,

notwithstanding the absence of any plea agreement.

It followed, the court held, that

this claim, too, failed on its face.

After dismissing McNeil’s petition, the district court denied a certificate of

appealability. Id. at *4. When McNeil timely appealed, this court granted certificates of

appealability on McNeil’s ineffective assistance claims related to the unfiled motion to

suppress and to the alleged failure to seek out a plea bargain. 3

3 We appointed Professor Erica J. Hashimoto, Director of the Georgetown University Law Center Appellate Litigation Program, as counsel for McNeil. We appreciate the able assistance of Professor Hashimoto and the clinic staff and students.

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II.

We begin by setting out the legal framework that governs our review. On appeal

from the denial of a § 2255 petition, we review the district court’s legal conclusions de

novo. United States v. Mayhew,

, 176 (4th Cir. 2021). When, as here, the

district court denies relief without an evidentiary hearing, “the facts must be viewed in the

light most favorable to the § 2255 movant” – here, McNeil – drawing all reasonable

inferences in his favor. Id. (internal quotations omitted); United States v. Paylor,

, 565 (4th Cir. 2023).

McNeil’s Sixth Amendment ineffective assistance of counsel claims are evaluated

under the well-established framework set out in Strickland v. Washington,

(1984). Under Strickland’s first prong, McNeil must show that his counsel’s performance

was constitutionally deficient,

, overcoming the “strong presumption that

counsel’s representation was within the wide range of reasonable professional assistance,”

Harrington v. Richter,

(2011) (internal quotations omitted). Strickland’s

second prong requires McNeil to establish prejudice, in the form of “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland,

.

As the district court recognized, we have explained before how the Strickland

standard applies when the claimed deficiency is the failure to file a suppression motion.

See McNeil,

, at *4 (citing Grueninger, 813 F.3d at 524–25). Under the

first prong, “it is enough to call into question counsel’s performance that an unfiled motion

would have had some substance,” at which point we consider whether “reasonable strategic

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reasons” nonetheless “warranted not filing the motion.” Grueninger, 813 F.3d at 524–25

(cleaned up); United States v. Pressley,

, 388 (4th Cir. 2021). 4 To satisfy the

prejudice prong, a petitioner must show that the unfiled suppression motion was

“meritorious and likely would have been granted,” and also a “reasonable probability that

granting the motion would have affected the outcome” of the plea process. Grueninger,

; Pressley, 990 F.3d at 388; see also Hill v. Lockhart,

(1985)

(applying the Strickland prejudice standard in a guilty-plea context).

Finally, a district court is obligated to hold an evidentiary hearing on a petitioner’s

Strickland claim “[u]nless the motion and the files and records of the case conclusively

4 The government suggests that we set aside Grueninger and Pressley and take a different approach to Strickland’s performance prong, under which counsel’s performance could qualify as deficient only if “no competent attorney would think a motion to suppress would have failed.” Brief of United States at 11 (quoting Premo v. Moore,

(2011)). According to the government, asking only whether an unfiled suppression motion would have “some substance” runs afoul of the Supreme Court’s emphasis on the need for “strict adherence” to Strickland in the guilty-plea context. See Premo,

. On multiple counts, we must disagree.

First, of course, this panel is not free to discard Grueninger and Pressley – both decided after Premo, with the benefit of that case’s discussion of the special deference due a state court’s application of Strickland under

(d). See Premo, 562 U.S. at 122–23. Second, the government omits a key element from our analysis of the performance prong: A petitioner must show not only that a suppression motion would have had “some substance,” but also that no “reasonable strategic reasons warranted not filing the motion.” Pressley, 990 F.3d at 388. There is no basis for the government’s suggestion that Grueninger and Pressley fail to give the requisite deference to counsel’s tactical decisions, or otherwise fall short of “strict adherence” to Strickland. Finally, though Grueninger and Pressley involved petitioners who went to trial rather than pleading guilty, nothing in the reasoning of those cases turned on that fact, and we see no reason why it would. Whether an unfiled suppression motion constitutes deficient performance can and should be evaluated as of the time counsel makes her decision, without regard to whether the defendant later pleads guilty or goes to trial.

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show that the prisoner is entitled to no relief[.]”

(b). Although “whether

to hold a hearing ordinarily is a matter of district court discretion, a hearing is required

when a movant presents a colorable Sixth Amendment claim showing disputed facts

beyond the record, or when a credibility determination is necessary to resolve the claim.”

Mayhew, 995 F.3d at 176–77; see Paylor, 88 F.4th at 565.

A.

We first address McNeil’s claim that his counsel was ineffective for failing to file a

motion to suppress the fruits of the police officers’ entry into his backyard. The district

court dismissed that claim on one ground: McNeil’s underlying Fourth Amendment

argument – that the police violated the Fourth Amendment when they entered his curtilage

without a warrant – was “frivolous.” McNeil,

, at *4. That meant, under

Strickland’s performance prong, that the unfiled motion would not have had “some

substance,”

(quoting Grueninger, 813 F.3d at 524–25), obviating the need for an inquiry

into possible strategic reasons for failing to file. It also meant that McNeil could not meet

the prejudice standard by showing that the motion was “meritorious” and likely to be

granted.

The district court’s dismissal, in other words, starts and ends with its

conclusory ruling that the police officers’ “knock and talk complied with the Fourth

Amendment.”

We disagree. On this record, it cannot be shown “conclusively,” see

(b), that the police did not violate McNeil’s Fourth Amendment rights when they

entered his backyard after their front-door “knock and talk” proved fruitless. Instead,

accepting McNeil’s allegations as true and viewing the record facts in the light most

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favorable to McNeil, see Pressley, 990 F.3d at 387, a suppression motion based on

McNeil’s Fourth Amendment argument plainly would have had “some substance” and may

well have proved meritorious. Under those circumstances, the district court was obliged

to conduct an evidentiary hearing into McNeil’s Strickland claim.

There appears to be no dispute that the police officers here obtained the evidence

used to charge McNeil only after they entered his backyard, giving them access to the

outbuilding and then to the odor of marijuana. Nor does the government dispute that

McNeil’s backyard was part of the “curtilage” around his home, as fully and robustly

protected under the Fourth Amendment as the home itself. See Florida v. Jardines,

(2013). Finally, it is clear that the police intruded into McNeil’s protected

curtilage without a warrant – making that intrusion presumptively unreasonable under the

Fourth Amendment. See Collins v. Virginia,

, 593 (2018).

To justify the warrantless entry into McNeil’s backyard, the government relies

solely on the knock-and-talk doctrine. Under that doctrine, a police officer without a

warrant may enter a home’s curtilage to “approach [the] home and knock” at the door,

because “that is no more than any private citizen might do.” Covey v. Assessor of Ohio

Cnty.,

(4th Cir. 2015) (internal quotations omitted). A police officer,

like any visitor, has an “implicit license” to “approach the home by the front path, knock

promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”

Jardines,

. Under this so-called exception to the warrant requirement, see

Covey,

, it appears the police officers acted reasonably and consistent with

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their “implicit license” when they approached McNeil’s front door and knocked, hoping to

find and speak with McNeil.

The problem is what happened next, when the police went beyond McNeil’s main

entrance and into his backyard. As we have made clear, “the right to knock and talk does

not entail a right to conduct a general investigation on a home’s curtilage.” Covey,

. “There is no customary invitation to do that.” Jardines,

(emphasis in original). Instead, the scope of the knock-and-talk exception can expand

beyond the front door only in limited circumstances: “An officer may [] bypass the front

door (or another entry point usually used by visitors) when circumstances reasonably

indicate that the officer might find the homeowner elsewhere on the property.” Covey,

. On the record before us, construed most favorably to McNeil, we do not see

how the government can meet that standard here.

First, the officers did not “bypass [McNeil’s] front door” and proceed directly to

some other part of his property. Cf. Alvarez v. Montgomery Cnty.,

, 359 (4th

Cir. 1998) (holding that police conducted a valid “knock and talk” when they went directly

to the backyard “in light of [a] sign reading ‘Party in Back’”); United States v. Miller,

, 138 (4th Cir. 2020) (holding that police officers could “proceed [to the

driveway] directly as part of their effort” to conduct a “knock and talk” after “they arrived

and saw a group of people standing just beside the home”). Instead, the officers went first

to McNeil’s front door, and then, after their initial approach proved unsuccessful, advanced

into his backyard. But Jardines’s “implied license” theory allows the police to do only

what any private citizen might, see

, which usually does not include roaming

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around a neighbor’s backyard because a knock at the front door has been unavailing. None

of our cases applying Jardines has approved a curtilage entry after an unsuccessful stop at

the front door, and it is not clear that the police officers here were entitled to this second

bite at the apple.

And in any event, on the minimal record thus far assembled, we see nothing that

would have “reasonably indicate[d]” to the officers that they would find McNeil in his

backyard. See Covey,

. On the contrary, according to McNeil’s sworn

§ 2255 petition, when the police knocked on his door, they were told by his children that

he was not at home – an indication that McNeil would not be found on the premises, and a

response that would prompt any normal social visitor to depart rather than “trawl for

evidence” in the backyard. See Jardines, 569 U.S. at 6–8. And the police reports are not

inconsistent with this account, specifying only that the officers were met at the door by

“two juveniles” who were “inside by themselves.” J.A. 119.

Nor do the police reports provide any other basis for believing that McNeil could

be found in the backyard. Although one report alludes to a “juvenile” behind the house,

J.A. 119, it does not say that this “juvenile” – or anyone else – was seen in the backyard

before the police entered. See Covey,

(holding that the knock-and-talk

doctrine would permit police to proceed directly to a home’s patio area only if officers saw

the defendant on the patio before they entered the curtilage). Nor does it explain why the

presence of a “juvenile” – age unspecified – would indicate that McNeil was nearby.

Finally, the government makes much of the fact that the police had observed a car and

passenger approach McNeil’s house 30 minutes earlier. But the police did not see McNeil

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himself at the house – indeed, they saw nothing of what happened when the passenger

reached McNeil’s door – and in any event, their reports gave no reason to think that McNeil

could not have left the property in the intervening 30 minutes.

In short, on the record as it now stands, we cannot say that a suppression motion

based on McNeil’s Fourth Amendment claim would have been without substance. Instead,

it appears that such a motion might well have been meritorious, because the police may

well have exceeded the scope of the knock-and-talk doctrine when they entered McNeil’s

backyard after having been turned away at his front door. The district court therefore erred

in dismissing McNeil’s Strickland claim on the ground that a motion to suppress would

have been frivolous.

That is not to say, to be clear, that McNeil necessarily will prevail on his claim.

Whether McNeil is entitled to relief under Strickland can be “conclusively” determined

only after an evidentiary hearing. See

(b). First, application of the knock-

and-talk doctrine is highly fact-specific, and an evidentiary hearing will allow both parties

to develop the record as to what exactly transpired at McNeil’s home and what indications,

if any, the officers may have had that they could find McNeil in his backyard. And while

we have today viewed the relevant record facts and allegations in the light most favorable

to McNeil, see Mayhew, 995 F.3d at 176, the government is entitled to contest any

inferences or allegations it disputes.

Second, the potential merit of the unfiled suppression motion is not the only issue

under Strickland. As we have explained, even if a motion to suppress would have had

“some substance,” counsel has “wide latitude” in deciding whether there are “reasonable

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strategic reasons” to forgo filing. See Pressley, 990 F.3d at 388 (quoting Grueninger,

). And the record as it now stands is “devoid of information regarding counsel’s

reasons, strategic or otherwise, for declining to file a motion to suppress.” Id. at 389.

Critical facts – whether McNeil “relayed to counsel the key facts on which he now relies”

in his § 2255 petition, whether counsel’s decision not to file a suppression motion was

based on trial strategy – remain unknown. Id. at 389, 386. Without an evidentiary hearing

to develop those facts, “we cannot determine whether, viewed objectively, counsel acted

reasonably under the circumstances.” Id. at 389.

Accordingly, we vacate the dismissal of McNeil’s Strickland claim and remand for

an evidentiary hearing on whether counsel was ineffective for failing to file a motion to

suppress. Like the district court, we view as intertwined with this claim McNeil’s related

allegation that counsel improperly failed to investigate the traffic stop that preceded the

officers’ “knock and talk” at his house. See McNeil,

, at *4 (dismissing

both claims together on the ground that McNeil’s underlying Fourth Amendment argument

is frivolous). The passengers’ account of what was said during that encounter, for instance,

could have shed light – one way or the other – on whether the police had some reason to

believe McNeil was on his property when they arrived at his front door, bearing on the

potential merit of a motion to suppress. This allegation, too, should be taken up at the

evidentiary hearing.

B.

Finally, we turn to McNeil’s claim that his counsel was ineffective for failing to seek

out a plea deal on his behalf, despite multiple requests that she do so. The district court

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dismissed this claim, too, on one ground alone: that McNeil’s claim was foreclosed by his

“sworn statements during his Rule 11 proceeding” affirming that he was “fully satisfied”

with his counsel’s services regarding his plea. McNeil,

, at *3. And on

appeal, the government likewise relies on that ground to support the dismissal of McNeil’s

claim without a hearing, arguing that McNeil’s plea-related Strickland claims contradict

his sworn Rule 11 statements and are therefore facially without merit. 5 We cannot agree.

The problem here is not with the law relied on by the district court and the

government. It is indeed the case that “sworn statements made during a Rule 11 colloquy”

bind a petitioner, in that a district court generally should dismiss, without an evidentiary

hearing, a § 2255 petition that “necessarily relies on allegations that contradict [those]

sworn statements.” See United States v. Lemaster,

, 221–22 (4th Cir. 2005).

The problem is with the factual predicate: There is no record evidence that McNeil

affirmed under oath that he was satisfied with his counsel’s performance.

What the record shows is that McNeil was in a group of defendants at the start of

his Rule 11 hearing – a group of unsworn defendants, which the district court initially

advised collectively. As part of that process, the district court questioned the group as a

whole, instructing each defendant to raise his hand if he wished to answer “yes.” On the

5 The government raises one other argument with respect to McNeil’s allegation that his counsel failed to pass on to him any plea offer that she did negotiate, contending that this allegation, in particular, is too speculative to survive dismissal. But that allegation is intertwined with McNeil’s primary allegation – that his counsel refused his many requests to seek out a plea agreement – and an evidentiary hearing into one will cover the same ground as a hearing into the other. Accordingly, we need not decide whether the failure- to-convey allegation, standing alone, would warrant an evidentiary hearing.

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ninth question, the court asked if there was “any defendant who [wa]s not fully and

completely satisfied with his or her lawyer’s legal services,” and no defendant raised his

hand. That appears to be the sworn affirmation of satisfaction relied on by the district

court, but as the record reflects, no sworn affirmation actually occurred.

An hour or so later, the district court did put McNeil under oath and inform him of

the consequences if he lied. But during the actual sworn colloquy that followed, the district

court failed to ask McNeil any questions about his satisfaction with his lawyer’s

performance, and McNeil offered up no assessment on his own. The district court did ask

McNeil whether he “hear[d] and underst[ood]” the “questions that I asked the defendants

as a group,” to which McNeil responded “[y]es,” J.A. 46 – an exchange the government

now suggests had a kind of retroactive effect, turning McNeil’s prior unsworn failure to

raise his hand into a sworn affirmation of satisfaction with his lawyer. The government

provides no support for that theory, and we cannot agree. We treat as binding a defendant’s

sworn and “solemn declaration[] in open court,” Lemaster,

(internal

quotations omitted), not an unsworn non-response to a group colloquy.

We do not question the discretion of district courts to conduct portions of their Rule

11 hearings by addressing groups of defendants together, and we do not fault the district

court here for beginning with such a procedure. But the district court erred when it

dismissed McNeil’s plea-related Strickland claim on the basis of a sworn affirmation that

simply did not occur. Because McNeil did not make a sworn statement of satisfaction with

his lawyer’s performance, and because his allegations are not otherwise “so palpably

incredible, [] patently frivolous or false as to warrant summary dismissal,” see Paylor, 88

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F.4th at 565 (quoting United States v. White,

(4th Cir. 2004)), we vacate

this dismissal, too, and remand for an evidentiary hearing into McNeil’s Strickland claim.

III.

For the reasons given above, we vacate the judgment of the district court and remand

for further proceedings consistent with this opinion.

VACATED AND REMANDED

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