Attorney’s Strategic Choice Not to Pursue a Suppression Motion Is Not Deficient Where District Court Credits Voluntary Consent: Eleventh Circuit Reaffirms Strickland/Premo Deference in § 2255 Litigation

Case: Kissinger St. Fleur v. United States

Court: United States Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Unpublished)

Date: April 4, 2025

Panel: Jordan, Lagoa, and Wilson, Circuit Judges (per curiam)

Introduction

In this unpublished per curiam decision, the Eleventh Circuit affirmed the denial of federal prisoner Kissinger St. Fleur’s motion under 28 U.S.C. § 2255 to vacate his convictions for (1) conspiracy to distribute, and to possess with intent to distribute, a controlled substance, and (2) aiding and abetting possession of a controlled substance with intent to distribute. The Certificate of Appealability (COA) was narrowly confined to whether trial counsel provided ineffective assistance by failing to move to suppress evidence obtained from a search of St. Fleur’s person after a traffic stop, on the theory that his purported “consent” was disputed.

After an evidentiary hearing, the district court found that the officer’s account of voluntary consent and defense counsel’s testimony were credible, while discounting the testimony of St. Fleur and his co-defendant. On appeal, applying Strickland v. Washington and Premo v. Moore, the Eleventh Circuit held that counsel’s choice not to file a suppression motion—given the record, the credibility findings, and the legal landscape—did not constitute deficient performance. Because deficiency was not established, the court did not reach prejudice.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s denial of § 2255 relief. The court:

Applied Strickland’s two-prong ineffective-assistance framework (deficient performance and prejudice), with de novo review of the legal ineffectiveness question and clear-error review of factual findings.
Noted that decisions about filing a suppression motion are generally strategic and judged under the deferential standards of Strickland and Premo.
Accepted the district court’s credibility determinations that (a) the officer testified St. Fleur consented to the search, (b) counsel credibly testified he investigated video evidence (none existed) and understood from his client that he had not told the officer he could not search, and (c) the testimony from St. Fleur and his co-defendant was not credible.
Held that, under Premo, many competent attorneys could reasonably conclude a suppression motion would likely fail; therefore, counsel’s decision not to file such a motion was not constitutionally deficient.
Declined to reach Strickland’s prejudice prong because deficiency was not shown.

Case Background and Procedural Posture

The search at issue arose from a traffic stop in which St. Fleur was a passenger. Evidence discovered during a search of his person was later used against him. In § 2255 proceedings, he asserted that his trial counsel, Ernesto Luna, rendered ineffective assistance by not moving to suppress that evidence, arguing he had not consented to the search. He supported this claim with an affidavit and testimony at the § 2255 evidentiary hearing. A co-defendant also testified that no consent was given. The district court, however, found their testimony not credible, describing the co-defendant’s testimony as “awful,” and deeming St. Fleur’s credibility compromised because he initially denied involvement in the conspiracy (later admitting participation when it benefitted another claim) and because of his criminal history and implausible account regarding who drove a drug-transaction vehicle.

Trial counsel testified he investigated a possible suppression motion early on, asked his client about consent, was told that the client had not told the officer he could not search him, looked for but found no video evidence, and heard nothing further from the client about suppression. The officer testified, both at the criminal trial and at the evidentiary hearing, that St. Fleur consented to the search. The district court credited the officer and counsel over the defendant and co-defendant, and denied § 2255 relief. The Eleventh Circuit granted a COA limited to the ineffective-assistance issue regarding the unfiled suppression motion and affirmed.

Detailed Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984): The bedrock framework for ineffective-assistance claims. A defendant must show (1) deficient performance and (2) prejudice. The opinion relies on Strickland’s strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and underscores that courts may resolve claims on either prong, obviating the need to reach both.
Premo v. Moore, 562 U.S. 115, 124 (2011): Central to this case. When the alleged deficiency is failure to file a suppression motion, the question is whether “no competent attorney would think a motion to suppress would have failed.” The Eleventh Circuit applied Premo to conclude that, in light of the district court’s credibility-backed finding of consent and lack of corroborating video, a suppression motion was unlikely to succeed; thus, competent counsel could reasonably forgo it.
United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989): Cited for the basic Fourth Amendment proposition that voluntary consent renders warrantless searches lawful without probable cause or reasonable suspicion. This reinforced that if the district court credited the officer’s testimony of consent, suppression would be unwarranted.
Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir. 2010): Decisions not to file motions can be strategic if they involve weighing competing risks and benefits. This supported characterizing counsel’s choice as a reasonable strategic judgment rather than a constitutional deficiency.
United States v. Freixas, 332 F.3d 1314, 1319–20 (11th Cir. 2003): Clarifies Strickland’s performance inquiry from the Eleventh Circuit’s perspective: the defendant must show that no competent attorney would have acted similarly. The court used this to frame the deficiency analysis.
Nix v. Whiteside, 475 U.S. 157, 175 (1986): Explains that Strickland’s “reasonable probability” standard for prejudice is less demanding than “more likely than not.” While the panel did not reach prejudice, it reminded readers of the applicable standard.
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002): Emphasizes appellate deference to district court credibility determinations—accepted unless contrary to the laws of nature or inherently implausible. This was key: the appellate court accepted the district court’s credibility findings that dispositively shaped the deficient-performance analysis.
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004): and Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014): Provide standard-of-review guidance in § 2255 appeals, including de novo review of ineffective-assistance claims as mixed questions of law and fact.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998): Confirms that courts liberally construe pro se pleadings. The panel noted this but found it did not alter the outcome under Strickland/Premo.

Legal Reasoning

The court’s reasoning unfolded in two layers: a deferential view of the district court’s factual findings and a highly deferential view of counsel’s strategic choices under Strickland and Premo.

Factual bedrock—consent found: The district court credited the officer’s testimony that St. Fleur consented to the search and counsel’s testimony that (a) he investigated, (b) he found no video footage, and (c) his client had not told the officer he could not search him. The court discounted contrary testimony by St. Fleur and his co-defendant, expressly finding it not credible. Under Ramirez-Chilel, these credibility findings were insulated from appellate disturbance absent implausibility, which was not present.
Legal effect of consent: Because voluntary consent obviates any need for a warrant, probable cause, or reasonable suspicion (Blake), any suppression motion premised on lack of consent would turn on credibility. With the district court already having credited the officer, the likelihood of suppression succeeding was low.
Strategic choice and the Premo filter: Counsel’s decision not to file a suppression motion is evaluated through Premo’s lens: would no competent attorney think the motion likely to fail? Given the record—no video corroboration, the officer’s consistent testimony, and the client’s own acknowledgment that he never told the officer he could not search—competent counsel could reasonably conclude the motion lacked merit.
Strickland’s presumption of reasonableness: The court emphasized Strickland’s strong presumption that counsel acted reasonably. Here, counsel explored the issue, investigated potential evidence (video), and made a tactical judgment. The record did not rebut the presumption.
No need to reach prejudice: Because deficient performance was not established, the court did not analyze whether the outcome would likely have been different but for the alleged error (Strickland’s second prong).

Key Factual Determinations and Credibility

The ruling turned on credibility. The district court:

Found the officer’s testimony credible that St. Fleur gave consent.
Found defense counsel’s testimony credible that he investigated (including searching for video, which did not exist) and that his client had not said “you cannot search me.”
Discounted the co-defendant’s testimony as “awful” and gave it “little consideration.”
Found St. Fleur’s testimony unreliable due to his evolving account of his role in the conspiracy, his criminal history, and an implausible explanation regarding a drug-transaction vehicle’s driver.

These determinations were dispositive. On appeal, the panel deferred to them and treated them as the factual premise for the deficiency analysis.

How the Court Applied Consent Law in the Ineffective-Assistance Context

The Eleventh Circuit did not need to evaluate the voluntariness of consent de novo because the case came to it as an ineffective-assistance claim, not as a direct Fourth Amendment challenge. That framing matters:

On a direct suppression appeal, the court would scrutinize the voluntariness of consent under the totality of the circumstances, again deferring to factual findings.
In a § 2255/Strickland posture, the question narrows to whether a reasonable attorney, at the time, could conclude a motion would likely fail in light of the record and foreseeable credibility determinations. Under Premo, if the motion appears unwinnable, declining to file it is not deficient.

The court thus used consent law (Blake) primarily to assess the viability of the unfiled motion, not to adjudicate consent anew.

Impact and Implications

Doctrinal impact: Although unpublished and therefore non-precedential, the decision reinforces several recurring § 2255 themes in the Eleventh Circuit.

High bar for Strickland deficiency when the unfiled motion is weak: If the district court’s credibility findings support consent, counsel’s decision not to file a suppression motion will generally be respected as strategic under Premo and Strickland.
Centrality of credibility in suppression-linked IAC claims: When the defense case for suppression leans on testimony from the defendant or co-defendant that the district court finds unreliable, a later § 2255 challenge will likely fail at the deficiency prong. Appellate courts give substantial deference to those credibility determinations.
Investigation efforts matter: Counsel’s attempt to locate video evidence, coupled with his client’s own statements, bolstered the reasonableness of the strategic choice. Documented investigation can be outcome-determinative on the deficiency prong.
Limited utility of pro se leniency: Liberal construction (Tannenbaum) does not soften Strickland’s substantive standards; well-established deference still governs.

Practical implications for defense counsel:

Record your suppression analysis contemporaneously. A paper trail showing you investigated (e.g., checked for video) and assessed the odds can be decisive later.
Clarify the client’s account of consent. Ambiguous statements like “I never said he couldn’t search me” will be used to gauge viability; probe for and memorialize whether the client affirmatively consented, refused, or remained silent in a coercive context.
Weigh risks of a suppression hearing. Even a low-probability motion can elicit additional damaging testimony; deciding not to file can be reasonable where success turns on unlikely credibility reversals.

Practical implications for § 2255 litigants:

Expect courts to credit district-level credibility findings unless patently implausible. Building a suppression-based IAC claim frequently requires more than conflicting affidavits—it requires undermining the factual predicate the district court accepted.
Document explicit requests to file suppression motions and provide counsel with all facts supporting non-consent. The absence of an explicit request is not dispositive, but it can shape the narrative of counsel’s strategic calculus.

Institutional note: As an unpublished “Do Not Publish” disposition, the opinion is not binding precedent in the Eleventh Circuit, but it is persuasive and reflects how panels are likely to apply Strickland and Premo in similar post-conviction contexts.

Complex Concepts Simplified

28 U.S.C. § 2255: A vehicle for federal prisoners to challenge their convictions/sentences on constitutional or jurisdictional grounds, or where errors render the proceedings fundamentally unfair.
Certificate of Appealability (COA): A gatekeeping requirement for appealing a denied § 2255 motion. The appellate court can limit the issues; here, it was limited to the ineffective-assistance claim about the unfiled suppression motion.
Strickland deficiency: The defendant must show counsel’s performance fell below an objective standard of reasonableness. Courts presume counsel acted reasonably and strategically.
Strickland prejudice: The defendant must show a reasonable probability that, but for counsel’s errors, the result would have been different. “Reasonable probability” is less than “more likely than not.”
Premo’s “no competent attorney” filter: For claims predicated on unfiled suppression motions, the question is whether no competent attorney would have thought the motion would fail. If a competent attorney could reasonably view it as weak, not filing is not deficient.
Consent search: Police may conduct a search without a warrant or probable cause if a person voluntarily consents. Voluntariness is assessed under the totality of the circumstances.
Standard of review—credibility and clear error: Appellate courts generally must accept the trial court’s credibility assessments unless they are implausible or internally incoherent.
Per curiam, Non-Argument Calendar, Unpublished: The panel issued a joint, unsigned decision without oral argument; unpublished means it is not binding precedent but may be cited as persuasive authority.

Conclusion

The Eleventh Circuit’s decision in Kissinger St. Fleur v. United States underscores the formidable deference Strickland and Premo demand in evaluating counsel’s strategic decisions, particularly regarding suppression motions grounded in contested consent. Anchored by the district court’s credibility findings that St. Fleur voluntarily consented to the search and that counsel reasonably investigated and assessed the issue, the panel concluded that many competent attorneys could have deemed a suppression motion unwinnable. Without deficient performance, the ineffective-assistance claim necessarily failed, obviating any need to analyze prejudice.

Although unpublished, the opinion offers a clear roadmap for both practitioners and § 2255 litigants: suppression-based ineffective-assistance claims will typically turn on whether the underlying Fourth Amendment argument was viable at the time and whether the district court’s credibility findings suggest it would have prevailed. In that posture, counsel’s well-documented, reasonable strategic choices are unlikely to be second-guessed on collateral review.

Key Takeaways

Failure to file a suppression motion is not deficient where consent is credibly found and a motion would likely fail.
Appellate courts defer heavily to district court credibility determinations in § 2255 proceedings.
Strickland’s presumption of reasonableness and Premo’s “no competent attorney” standard set a high bar for deficiency on suppression-related IAC claims.
Documented investigation (e.g., efforts to locate video) and client communications can be dispositive in defending counsel’s performance.
Because deficiency failed, the court did not reach prejudice—reminding litigants that either Strickland prong can end the inquiry.