(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-8361
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD KEITH HALVERSON,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
(P-90-CA-16)
______________________________________________
(January 26, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Ronald Keith Halverson (Halverson)
appeals the district court's denial of his motion to vacate under
28 U.S.C. § 2255. Concluding that Halverson's contentions on
appeal fail to demonstrate any reversible error, we affirm.

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2
Factual and Procedural Background
On October 30, 1988, Halverson arrived at the Border Patrol
checkpoint in Desert Haven, Texas driving a 1988 Mercury Sable with
codefendant Bradley Arnold Johnson (Johnson) as a passenger.
Border Patrol Agent Frank McKinney inquired as to their citizenship
and noticed that Halverson was extremely nervous and avoided eye
contact. Agent McKinney asked Halverson what was in the trunk;
Halverson responded that it contained a few things that he had
bought in Mexico. Halverson agreed to allow Agent McKinney to
search the trunk. While Halverson was opening the trunk, Border
Patrol Agent Manuel Padilla was walking his trained narcotics dog
Itar to a different vehicle. As Itar passed Halverson, Itar
alerted positively on Halverson. The car was referred to secondary
inspection, where Itar alerted positively to the passenger door and
underneath the back seat of the car. Under the back seat on the
driver's side, the border patrol agents found a brick shaped
package containing approximately 999 grams of 81% pure cocaine.
Halverson was indicted of possession with intent to distribute
over 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1),
and conspiring with Johnson to possess with intent to distribute
over 500 grams of cocaine, in violation of 21 U.S.C. § 846. On
January 3, 1989, Halverson pleaded guilty to the possession charge
in exchange for the government's agreeing to dismiss the conspiracy
charge. The government also agreed to recommend that Halverson had
accepted responsibility. Before accepting Halverson's plea, the
district court asked Halverson if he were competent or taking any
medication. After receiving satisfactory responses, the district

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court affirmatively declared that it found Halverson competent.
On March 3, 1989, Halverson moved to withdraw his guilty plea.
He alleged that he had a serious case of hepatitis when he pleaded
guilty and was not thinking clearly. As support, he attached a
letter from a doctor who had been treating him since December. At
the sentencing hearing on March 6, 1989, the district court held a
hearing on the motion to withdraw the guilty plea and denied the
motion. The court subsequently sentenced Halverson to eighty-four
months' imprisonment and four years' supervised release.
Halverson appealed to this Court, asserting that the district
court abused its discretion in refusing to allow him to withdraw
his guilty plea. On January 4, 1990, we affirmed the district
court's decision in an unpublished opinion. See United States v.
Halverson, No. 89-1289 (5th Cir. 1990) (unpublished).
On May 1, 1990, Halverson, proceeding pro se, filed a motion
to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
He alleged that he was innocent of both charges and that he
received ineffective assistance of counsel. On September 20, 1990,
the district court denied the motion to vacate, set aside, or
correct the sentence. Halverson filed a motion for
reconsideration, and subsequently filed an addendum to the motion
for reconsideration. On April 23, 1991, the district court denied
the motion for reconsideration. That order was clarified on May
17, 1991, when the district court filed a supplemental order.
Halverson timely filed a notice of appeal on June 10, 1991.

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Discussion
A. Ineffective Assistance of Counsel
Halverson contends that he received ineffective assistance of
counsel because his lawyers' advice to enter the plea was
unreasonable and prejudicial because there was insufficient
evidence to prove that he committed the offense. He also asserts
that his lawyers were ineffective by failing to litigate a motion
to suppress evidence. His final contention is that his counsel
participated in framing him to protect Johnson's identity as a
government informant.
The Supreme Court delineated the test for ineffective
assistance of counsel in Strickland v. Washington, 104 S.Ct. 2052
(1984).
"To succeed on a claim of ineffective assistance of
counsel, a defendant must demonstrate both that his
counsel's performance was `outside the wide range of
professionally competent assistance,' and that `there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.' . . . The burden of proving either
element is heavy, as `counsel is strongly presumed to
have rendered adequate assistance and . . . exercise[d]
reasonable professional judgment,' and every legal
proceeding commands a `strong presumption of
reliability.'" Kirkpatrick v. Butler, 870 F.2d 276, 279
(5th Cir. 1989) (quoting Strickland, 104 S.Ct. 2052
(1984)), cert. denied, 110 S.Ct. 854 (1990).
The same two-part standard applies to ineffective assistance claims
arising out of the plea process: the petitioner must establish
"that but for his counsel's alleged failure to inform and
misrepresentations he `would not have pleaded guilty and would have
insisted on going to trial.'" United States v. Smith, 915 F.2d
959, 963 (5th Cir. 1990) (quoting Uresti v. Lynaugh, 821 F.2d 1099,

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1101 (5th Cir. 1987)).
1. Insufficient evidence
Halverson complains that the district court failed to address
his contention that his counsel was ineffective when his lawyers
advised him to plead guilty despite the existence of a car rental
agreement which revealed that Johnson was the sole authorized
driver. Halverson contends that the rental agreement thus
demonstrates that Johnson was the only one in control of the car,
and thus was the only one in possession of the cocaine and
therefore his lawyers were ineffective in not presenting a "mere
presence" defense.
To establish possession with intent to distribute, the
Government must prove beyond a reasonable doubt that the defendant:
"(1) knowingly (2) possessed contraband (3) with the intent to
distribute it." United States v. Garcia, 917 F.2d 1370, 1376 (5th
Cir. 1990). In proving possession, the government may establish
actual or constructive possession by direct or circumstantial
evidence. Id. "Constructive possession may be proved by a
defendant's ownership, dominion or control over the contraband
itself or over the premises or vehicle in which the contraband is
concealed." United States v. Ascarrunz, 838 F.2d 759, 763-64 (5th
Cir. 1988). "Constructive possession need not be exclusive, it may
be joint with others, and it may be proven with circumstantial
evidence." United States v. McKnight, 953 F.2d 898, 901 (5th Cir.
1992), cert. denied, 112 S.Ct. 2975 (1992). One who exercises
dominion and control over an automobile in which narcotics are
concealed may be deemed to be in possession of the narcotics.

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United States v. Dreyfus-deCampos, 698 F.2d 227, 229-30 (5th Cir.),
cert. denied, 103 S.Ct. 2123 (1983).
The record indicates that Halverson was driving when he and
Johnson arrived at the Border Patrol checkpoint. Halverson
responded to the agent's questions about what was in the trunk and
assented to the agent's request to search the trunk, indicating
some control over the vehicle. Finally, we note that the narcotics
dog Itar alerted positively on Halverson personally. Taken
together, these factors indicate sufficient dominion and control
over the car and the contraband for constructive possession to be
inferred. Because Halverson would not have been entitled to a
directed verdict of acquittal on a mere presence defense (or
otherwise), and before a
jury such a defense may well not have been successful, his lawyers
were not ineffective in advising Halverson to plead and not to go
to trial. Furthermore, we note that Halverson benefitted by
pleading guilty; the conspiracy charge was dropped and the
government agreed to recommend a two-point reduction for acceptance
of responsibility, reducing his possible term of imprisonment from
92-115 months to 77-96 months.
2. Motion to Suppress
Halverson also argues that his attorneys were ineffective in
failing to procure a hearing on his motion to suppress. He relies
on Horton v. Goose Creek I.S.D., 690 F.2d 470 (5th Cir. 1982),
cert. denied, 103 S.Ct. 3536 (1983) to argue that the dog sniff was
a search and that the evidence uncovered as a result of the sniff
should have been suppressed under the Fourth Amendment. In Horton,

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dog sniffs were performed randomly at schools. We found the
sniffing technique to be intrusive because the dogs sniffed around
each child, put their noses on the child, and scratched and
manifested other signs of excitement in the case of an alert. We
held that "sniffing by dogs of the students' persons in the manner
involved in this case is a search within the purview of the fourth
amendment." We explicitly refused to decide "whether the use of
dogs to sniff people in some other manner, e.g., at some distance,
is a search." Id. at 479.
The dog sniff in the instant case is under different enough
circumstances that it is not controlled by our narrow holding in
Horton. This sniff was performed at a border checkpoint, a very
different environment than a high school. We have previously held
that a dog sniff at a primary or secondary checkpoint does not
constitute a search. See United States v. Dovali-Avila, 895 F.2d
206, 207 (5th Cir. 1990). Furthermore, the record reflects that
Agent Padilla was simply walking Itar past Halverson on their way
to another location when Itar stopped and alerted on Halverson.
While Itar might have placed his nose on Halverson at some point
(as Halverson alleges in his affirmation), Agent Padilla did not
walk Itar up to Halverson for the express purpose of Itar
conducting a dog sniff. In Horton, we recognized that courts have
adopted a "public smell" doctrine "analogous to the exclusion from
fourth amendment coverage of things exposed to the public `view'."
Horton, 690 F.2d at 477. We reasoned that
"if a police officer, positioned in a place where he has
a right to be, is conscious of an odor, say, of
marijuana, no search has occurred; the aroma emanating

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from the property or person is considered exposed to the
public `view' and, therefore, unprotected. . . . [T]he
sniffing of a dog is `no different,' . . . the dog's
olfactory sense merely `enhances' that of the police
officer." Id.
The dog sniff in the instant case is much more akin to the concept
of a public smell than to the intrusive sniffs that occurred in
Horton.
With the foregoing jurisprudence established, we cannot
conclude that Halverson's attorneys were "outside the wide range of
professionally competent assistance" in not litigating the motion
to suppress. After surveying the relevant case law, Halverson's
counsel could have reasonably concluded that their chance of
success on a motion to suppress was slight at best and that it
would be more beneficial for Halverson to plead guilty and have the
government agree to dismiss the conspiracy charge and recommend
that he had accepted responsibility. Alternatively, we note that
Halverson has not suffered any prejudice from his attorneys'
failure to litigate the motion to suppress since, under our reading
of Horton and Dovali-Avila, the motion should have and would have
been denied.
In a slight variation, Halverson also contends that his
attorneys were ineffective not only for failing to litigate the
motion, but also for deceiving him into believing that the district
court had denied the motion to suppress. In his sworn affirmation,
Halverson states that his attorneys told him he had no choice but
to plead guilty, that this upset him because he was innocent, and
prompted him to get a drink to calm his nerves. He alleges that
this drink combined with his hepatitis caused him to not fully

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understand what was going on. He contends that while he was in
this muddled condition, his attorneys deceived him into believing
that the judge had denied the motion to suppress and that therefore
he needed to plead guilty.
This assertion, if true, would raise serious questions
regarding the nature of the representation that Halverson received.
We have reason to question, however, whether Halverson's attorneys
ever specifically stated that the motion to suppress had been
denied, as Halverson intimates. First, we note that Halverson
never states explicitly that his attorneys told (or otherwise
informed) him that the motion had been denied; instead, he alleges
only that they deceived him into believing this. Second, we note
that both of Halverson's attorneys filed affidavits averring that
they never told him that the motion had been denied. While there
may have been a misunderstanding between Halverson and his
attorneys, it appears that the attorneys told Halverson that the
motion was as good as denied. Granting that such a statement was
somewhat ambiguous, and assuming it actually lead to a
misunderstanding, making such a statement was not in and of itself
unreasonable. Furthermore, even if we assume that Halverson's
attorneys actually told him that the motion had been denied,
Halverson has not demonstrated the prejudice necessary for
ineffective assistance of counsel because the motion to suppress
was not meritorious and would have been denied anyway.
3. Informer status of codefendant Johnson
Halverson contends that Johnson was a government informant
dealing drugs. He asserts that his attorneys told him that Johnson

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was an informant and that Halverson had no choice but to plead
guilty. He contends that this recommendation that he plead guilty
so that charges could be dismissed against Johnson by the
government without exposing his informer status was ineffective
assistance. Johnson also argues that the district court erred in
not addressing this claim and in refusing to order that certain
documents that he requested be produced for at least an in camera
review.
We find nothing in the record supporting the existence of this
far-fetched conspiracy. Halverson's hypothesis is based solely on
the fact that Johnson had an FBI number and that Halverson was
refused some information from the Drug Enforcement Administration.
The assistant United States Attorney filed an affidavit that
Johnson was not a government informant. Although habeas petitions
should be construed liberally, mere conclusory allegations on a
critical matter are insufficient to raise a constitutional issue.
See United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989).
"Absent evidence in the record, a court cannot consider a habeas
petitioner's bald assertions on a critical issue in his pro se
petition . . ., unsupported and unsupportable by anything else
contained in the record, to be of probative evidentiary value."
Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Accordingly,
because Halverson has produced nothing but conclusory allegations
belied by the record, the district court did not err in not
granting him relief on this claim.

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B. Evidentiary Hearing
Halverson's final claim is that the district court erred in
not granting him a hearing on his ineffective assistance claims.
Halverson claims that his attorneys' declarations were
contradictory, and thus that the district court was required to
hold an evidentiary hearing because there were disputed issues of
fact outside of the record.
The question whether an evidentiary hearing is necessary to
resolve charges of ineffective assistance depends on an assessment
of the record. United States v. Smith, 915 F.2d 959, 964 (5th Cir.
1990). "If the district court cannot resolve the allegations
without examining evidence beyond the record, it must hold a
hearing." Id. An evidentiary hearing is also unnecessary "when
the petitioner's allegations are `inconsistent with his conduct'
and when he does not offer `detailed and specific facts'
surrounding his allegations." United States v. Smith, 915 F.2d
959, 964 (5th Cir. 1990) (quoting Davis v. Butler, 825 F.2d 892,
894 (5th Cir. 1987)). Thus, conclusory allegations of ineffective
assistance fail to surmount the formidable barrier presented by a
petitioner's own open court assertions and thus do not require an
evidentiary hearing. Harmason v. Smith 888 F.2d 1527, 1531 (5th
Cir. 1989).
In the declarations, one of Halverson's attorneys, Michael
Hill, attested that Halverson said he would plead guilty if Johnson
would get off. Halverson's other lawyer, Michael Gibson, stated
that both he and Hill strongly advised Halverson to plead guilty
and advised Halverson that his motion to suppress would probably be

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denied. The fact that Hill and Gibson have differing accounts of
the advice they gave Halverson is not sufficient to require an
evidentiary hearing. This seemingly contradictory testimony is
only material to the issue of whether Halverson pleaded guilty of
his own volition. At the guilty plea hearing, Halverson, under
oath, attested that he had possessed the cocaine with the intent to
distribute and had agreed to plead guilty of his own volition.
Similarly, Halverson admitted his guilt to the probation officer
who compiled the presentence report. Because the record reveals
that Halverson was not coerced into pleading guilty, an evidentiary
hearing was not necessary to resolve the minor variations between
Hill's and Gibson's accounts of the advice they gave Halverson.
Conclusion
Having found the district court did not commit any reversible
error, we affirm.
AFFIRMED

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