United States v. Fernandez: No Ineffective Assistance for Failing to Advance a Novel “Lifting-Duration” Search Theory

Introduction

This commentary examines the Tenth Circuit’s Order and Judgment in United States v. Fernandez (No. 24-2120, Oct. 22, 2025), affirming the denial of a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel. The case arises out of a DEA bus interdiction in Albuquerque, New Mexico, during which agents lifted a passenger’s duffel bag for approximately thirty seconds, later identifying it as the defendant’s and obtaining consent to search, revealing methamphetamine. On direct appeal, the Tenth Circuit declined to consider a newly pressed argument that the duration of the lifting itself constituted an unlawful search. In his post-conviction motion, Fernandez reframed that omission as a constitutional deficiency by trial counsel.

The key issues addressed in this decision are:

• Whether trial counsel rendered deficient performance under Strickland v. Washington by failing to raise a “lifting-duration” theory of Fourth Amendment violation at the suppression hearing.
• Whether existing Supreme Court and Tenth Circuit precedent clearly established that lifting a bag (without squeezing/manipulating it) for a period of time constitutes a search.
• Whether counsel has a constitutional duty to raise or preserve novel arguments to secure appellate review.
• Whether an evidentiary hearing is required under § 2255(b) on the ineffective assistance claim.

The court affirmed the district court’s denial of relief, concluding that trial counsel was not constitutionally ineffective for declining to press a novel Fourth Amendment theory unsupported by controlling authority.

Summary of the Opinion

• The court applied the two-prong Strickland test for ineffective assistance of counsel and resolved the appeal under the performance prong alone, holding that counsel’s performance was not deficient.
• Existing precedent (Bond v. United States; United States v. Nicholson; United States v. Johnson) recognizes that squeezing or manipulating luggage can be a search; but the Tenth Circuit has not held that mere lifting—without manipulation—is a search. Indeed, Tenth Circuit cases (United States v. Gault; United States v. Hill) suggest that lifting or repositioning luggage can fall within travel-related expectations and not constitute a search.
• Because the “lifting-duration” theory would expand existing law and is not supported by any circuit authority, counsel was not ineffective for failing to raise it. Strategic choice to pursue arguments with stronger case support was reasonable.
• The Constitution does not require defense counsel to raise and preserve every novel theory solely to facilitate appellate review.
• No evidentiary hearing was warranted under § 2255(b) because the record conclusively showed Fernandez was not entitled to relief.
• Judgment affirmed.

Analysis

Precedents Cited and Their Influence

• Bond v. United States, 529 U.S. 334 (2000)
  • Holding: An officer’s “probing tactile examination” of luggage—here, squeezing a bus passenger’s bag to discern contents—constitutes a search beyond what a traveler reasonably expects from fellow passengers or carrier personnel.
  • Role in Fernandez: Establishes the manipulation/squeezing line as the constitutional threshold. The panel underscores that Bond targeted tactile probing, not mere lifting.
• United States v. Nicholson, 144 F.3d 632 (10th Cir. 1998)
  • Holding: Removing a bag from an overhead bin and manipulating it can constitute a Fourth Amendment search.
  • Role in Fernandez: Confirms in-circuit recognition that manipulation—beyond incidental handling—is constitutionally significant. No parallel holding extends this to “lifting-only.”
• United States v. Johnson, 43 F.4th 1100 (10th Cir. 2022)
  • Holding: Reaching inside a backpack and feeling a large bundle is a “probing tactile examination” that violates the Fourth Amendment absent justification.
  • Role in Fernandez: Reinforces the tactile-probing line of cases. It does not address lifting without manipulation.
• United States v. Gault, 92 F.3d 990 (10th Cir. 1996)
  • Holding: An officer who kicked and lifted a bag protruding into the aisle did not conduct a search where the information gleaned (weight and solidity) mirrored what a passenger might learn by accidental contact or lifting to clear the aisle.
  • Role in Fernandez: Provides in-circuit support that mere lifting, yielding only weight/solidity impressions akin to routine travel interactions, is not a search.
• United States v. Hill, 805 F.3d 935 (10th Cir. 2015)
  • Explanation: Travelers can expect others might remove or reposition luggage in crowded overhead racks.
  • Role in Fernandez: Frames reasonable traveler expectations regarding handling of overhead luggage; suggests that lifting/repositioning may be within the realm of ordinary, non-search conduct.
• Strickland v. Washington, 466 U.S. 668 (1984)
  • Standard: Ineffective assistance requires deficient performance and prejudice; courts apply highly deferential review to counsel’s strategic choices.
  • Role in Fernandez: The panel resolves the claim under the first prong, finding no deficiency in omitting a novel legal theory.
• Harrington v. Richter, 562 U.S. 86 (2011)
  • Principle: Counsel may reasonably balance limited resources and select among plausible strategies.
  • Role in Fernandez: Bolsters the permissibility of counsel’s strategic choice to press arguments with stronger doctrinal support rather than novel theories.
• United States v. Babcock, 40 F.4th 1172 (10th Cir. 2022)
  • Observation: “Life is short.” Counsel are not ineffective for failing to “conceive, research, and raise every novel argument that has a chance to prevail.”
  • Role in Fernandez: Provides the rhetorical and doctrinal backbone for rejecting a duty to raise novel issues.
• United States v. Harms, 371 F.3d 1208 (10th Cir. 2004)
  • Principle: Failing to recognize or raise a potential legal argument is not automatically deficient performance; the Constitution does not guarantee that counsel will raise every conceivable claim.
  • Role in Fernandez: Reinforces the conclusion that omission of the lifting-duration theory does not equal constitutional deficiency.
• United States v. Barrett, 797 F.3d 1207 (10th Cir. 2015)
  • Standard of Review: De novo review of legal conclusions on § 2255 motions; articulation of Strickland standards.
  • Role in Fernandez: Provides the framework for review and the statements on “reasonable probability” under prejudice, though the panel does not reach prejudice.

Legal Reasoning

The Tenth Circuit’s reasoning proceeds in three principal steps.

1. Identifying the Governing Legal Framework:

   The panel applies Strickland’s two-prong ineffective-assistance test. Because the deficiency prong fails, the court does not reach prejudice. The court also notes its ordinary de novo review of legal conclusions on § 2255 motions (Barrett) and emphasizes deference to strategic trial decisions (Strickland; Harrington).

2. Characterizing the “Lifting-Duration” Theory as Novel:

   The centerpiece of Fernandez’s § 2255 claim is that trial counsel should have argued that the agents conducted a search when they lifted his bag for approximately thirty seconds while the bus was empty, even without squeezing or manipulating the bag. The panel explains that this theory—whether or not plausible—is not dictated by controlling precedent and would represent an expansion of it. The court carefully contrasts cases like Bond, Nicholson, and Johnson (which condemn tactile probing or manipulation) with Gault and Hill (which recognize that some handling of luggage is within traveler expectations). The absence of any case endorsing Fernandez’s “lifting-duration” theory—either within the Tenth Circuit or in other circuits—underscores its novelty.

   In the court’s view, existing law draws the constitutional line at probing tactile manipulation; merely lifting a bag, even if heavy, does not cross that line under current precedent. As a result, counsel’s failure to anticipate a judicial extension of this line does not amount to objectively unreasonable performance.

3. Validating Counsel’s Strategic Choices and Rejecting a Duty to Preserve:

   The panel further reasons that it was reasonable for trial counsel to prioritize arguments that had substantial doctrinal support—namely, that carrying the bag down the aisle and seeking a claimant amounted to a seizure—rather than to invest resources in a novel lifting-duration search theory. Citing Harrington, the court emphasizes counsel’s latitude to balance limited resources in pursuit of effective trial strategies. Citing Babcock and Harms, the court rejects the proposition that counsel must raise or preserve every novel argument just to keep it alive on appeal. If it was constitutionally acceptable not to raise the theory in the first instance, it is equally acceptable not to raise it solely to preserve it for appellate review.

Having found no deficiency, the court concludes that “the motion and the files and records of the case conclusively show that [Fernandez] is entitled to no relief” (28 U.S.C. § 2255(b)), obviating the need for an evidentiary hearing.

Impact and Implications

Though issued as a nonprecedential order and judgment (see Fed. R. App. P. 32.1; 10th Cir. R. 32.1), the decision carries persuasive weight and offers several practical takeaways for Fourth Amendment litigation and post-conviction practice:

• Fourth Amendment Lines in Bus/Train Interdictions:
  • The decision leaves intact the manipulation/squeezing line from Bond and Nicholson while signaling that mere lifting—without squeezing or other probing tactile manipulation—remains outside the clearly established definition of a search.
  • While the court does not decide the merits of a “lifting-duration” theory, it indicates that such a theory would require an extension of current doctrine and thus cannot underwrite an ineffective-assistance claim premised on counsel’s failure to foresee it.
• Counsel’s Strategic Latitude:
  • Defense counsel are not constitutionally obligated to raise all novel or marginal theories, nor to preserve such theories solely for appeal. The decision reinforces the deference to strategic decisions and resource allocation at the trial stage.
  • Practically, counsel may continue to prioritize arguments grounded in established precedent without fear that omitting speculative extensions will later be deemed deficient.
• § 2255 Litigation Gatekeeping:
  • By resolving the claim at Strickland’s deficiency prong and denying a hearing under § 2255(b), the court signals that ineffective-assistance claims cannot bootstrap novel Fourth Amendment theories into post-conviction relief absent evidence that counsel ignored clearly established law or acted outside professional norms.
  • This reinforces the principle that § 2255 is not a vehicle for advancing unpreserved, cutting-edge theories by recasting them as inevitable duties of counsel.
• Future Development of the “Lifting-Duration” Concept:
  • The opinion does not foreclose future litigants from developing a robust record and advancing a duration-based handling argument under the Fourth Amendment. It simply holds that, as of now, this theory is not so well-established that counsel’s failure to raise it is constitutionally deficient.
  • Any future expansion is likely to hinge on evidence showing handling that crosses the line from incidental lifting to probing tactile examination or other manipulative conduct beyond traveler expectations.

Complex Concepts Simplified

• Search (Fourth Amendment):

  Government action that intrudes upon a person’s reasonable expectation of privacy. With luggage, “probing tactile examination” (e.g., squeezing/manipulating to discern contents) is typically considered a search; incidental handling that mimics what travelers expect from other passengers or staff may not be.

• Probing Tactile Examination:

  Physical manipulation aimed at discovering contents (e.g., squeezing to feel for “brick-like” objects). Distinguished from mere lifting or repositioning associated with ordinary travel.

• Ineffective Assistance of Counsel (Strickland):

  A constitutional claim requiring proof that (1) counsel’s performance was objectively unreasonable under prevailing professional norms, and (2) the deficiency prejudiced the defense (a reasonable probability of a different outcome but for the errors). Courts give strong deference to counsel’s strategic decisions.

• Novel Legal Theory:

  An argument not clearly established by controlling precedent. Counsel are not constitutionally required to invent or preserve such theories to provide effective assistance.

• Certificate of Appealability (COA):

  A threshold certification needed to appeal a denial of § 2255 relief. It requires a substantial showing of the denial of a constitutional right. The district court granted a COA here, enabling appellate review.

• § 2255 Evidentiary Hearing:

  A hearing is required unless the motion and the case files conclusively show the prisoner is not entitled to relief. The court found the record dispositive and denied a hearing.

• Nonprecedential Order and Judgment:

  A decision that is not binding precedent except under limited doctrines (law of the case, res judicata, collateral estoppel). It may be cited for persuasive value consistent with applicable rules.

• Waiver on Direct Appeal:

  Failure to properly raise an argument in the trial court can bar its consideration on appeal. Here, the Tenth Circuit declined to consider the lifting-duration theory on direct review because it was not timely presented at the suppression stage.

Conclusion

United States v. Fernandez clarifies, in persuasive terms, two important principles. First, under existing Supreme Court and Tenth Circuit authority, the constitutional line in luggage-handling cases is drawn at probing tactile manipulation; mere lifting without squeezing or manipulation is not presently recognized as a search, and extending the doctrine to a “lifting-duration” theory would be novel. Second, trial counsel are not constitutionally ineffective for declining to raise or preserve such novel theories; Strickland affords substantial deference to strategic choices grounded in established law and resource constraints.

For defense practitioners, the opinion confirms that effective assistance does not require chasing every possible extension of doctrine, particularly where existing precedent points the other way. For Fourth Amendment jurisprudence, the decision leaves open future development of duration-based handling theories but signals that, as of now, the manipulation/squeezing threshold remains the operative guidepost. And for § 2255 practice, the ruling underscores that where the record conclusively shows no deficiency, no evidentiary hearing is necessary, and post-conviction relief is unwarranted.