Grueninger v. Director, VDOC, No. 14-7072 (4th Cir. 2016)
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Petitioner was arrested for sexually abusing his fourteen-year-old daughter and, during his first interview, he said he needed an attorney. Petitioner was reinterviewed three days later without an attorney present and confessed. With respect to petitioner's sexual abuse charges, the court found that petitioner has demonstrated ineffective assistance of counsel under both the deficient performance and prejudice prongs of Strickland v. Washington, and reversed the district court’s dismissal of his habeas petition as to those convictions. The court remanded with instructions that the district court issue petitioner a writ of habeas corpus as to the sexual abuse charges unless the Commonwealth endeavors, within a reasonable period of time, to prosecute him in a new trial on those counts without utilizing the confession. With respect to petitioner's convictions on the child pornography charges, the court found that petitioner has not shown a reasonable probability that his confession altered the outcome of his trial, as required to demonstrate prejudice under Strickland, and therefore the court affirmed the district court order in that respect.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7072 ERIC ADAM GRUENINGER, Petitioner - Appellant, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:13-cv-00260-JAG) Argued: October 27, 2015 Decided: February 9, 2016 Before MOTZ, GREGORY, and HARRIS, Circuit Judges. Affirmed in part, reversed in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge Gregory joined. ARGUED: Michael Allen McIntosh, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. PAMELA HARRIS, Circuit Judge: In 2009, Virginia police arrested Eric Adam Grueninger for sexually first abusing his interview with fourteen-year-old the police daughter. his Grueninger investigator, During was read his Miranda rights and said, “I need an attorney.” days later, attorney the present, investigator and this re-interviewed time, him an confessed Grueninger without to performing various sexual acts with his daughter. ultimately was tried on sexual abuse and Three Grueninger child pornography charges. Grueninger’s attorney did not file a timely motion to suppress the confession, and the Commonwealth of Virginia (“Commonwealth”) relied on Grueninger’s confession in securing his conviction. On state attorney’s collateral failure to review, move to Grueninger suppress his argued that confession his under Edwards v. Arizona, 451 U.S. 477 (1981), which prohibits police interrogation after an invocation of Miranda rights, constituted ineffective assistance of counsel. A Virginia circuit court rejected Grueninger that “interrogated” claim, for holding Edwards that purposes, and that had his not been statements therefore would not have been suppressed had counsel so moved. We disagree, and conclude that the state court decision on this point was objectively unreasonable under 28 U.S.C. § 2254(d). 2 We further find that had Grueninger’s statements been suppressed, there is a reasonable probability that the outcome of his trial would have been different as to the sexual abuse charges, though not the child pornography charges. Accordingly, we reverse in part and affirm in part the district court order dismissing Grueninger’s federal habeas petition. I. A. On March 13, 2009, the Department of Social Services in Hanover County, Virginia, received a report that Grueninger was having sexual intercourse fourteen-year-old daughter. and other sexual contact with his The police arrested him that day, and investigator David Klisz met with Grueninger in jail for a first interview. Their interaction was captured on video, which was available to the prosecutor and to Grueninger’s attorney, Michael Clower. The video depicts Klisz administering Miranda warnings to Grueninger and Grueninger saying in response, “These are felonies, I need an [a]ttorney.” 1 1 J.A. 342. Grueninger This version of Grueninger’s statement comes from an affidavit submitted by Clower in 2011, in connection with Grueninger’s state habeas petition. During a pretrial motions hearing, the prosecutor appeared to recall a slightly different formulation of the statement. Unlike Clower’s affidavit — credited by the state habeas court in its analysis — the 3 claims, without disagreement from the Commonwealth, that Klisz immediately ceased all questioning. On that same day, Klisz searched Grueninger’s home with the consent of Grueninger’s wife. Grueninger’s top dresser Klisz found three thumb drives in drawer, one of photographs and videos of child pornography. a laptop in the home’s work room. which contained He also discovered Subsequent forensic analysis revealed that the content on the thumb drive had been accessed on the laptop. Three days later, on March 16, 2009, Hanover County issued a new arrest warrant with additional charges, and Klisz again visited Grueninger in jail. After administering the Miranda warnings a second time, Klisz asked Grueninger questions about the charges against him. This time, Grueninger answered Klisz’s questions and admitted to performing oral sex on his daughter, ejaculating on her, shaving her pubic hair, inserting a yeast infection naked. suppository into her vagina, and bathing with her He also admitted that the computer he primarily used at prosecutor’s statement was not sworn, and it is not clear what the basis was for her recollection. The district court and both parties have assumed that what Grueninger said was “These are felonies, I need an attorney,” and we do so, as well. 4 home was the laptop on which child pornography had been stored and accessed. A grand jury charged Grueninger with two counts of indecent liberties with a child under the age of fifteen, two counts of aggravated sexual battery by a parent, one count of rape by force or threat, three counts of forcible sodomy, and two counts of sexual object penetration (the “sexual abuse charges”). Grueninger also was charged with nine counts of possession of child pornography and one count of distribution pornography (the “child pornography charges”). of child On November 19, 2009, the Circuit Court of Hanover County (“Circuit Court” or “Hanover Circuit Court”) held a bench trial. Local rules required that a motion to suppress, like all motions in limine, be filed in writing before trial. Clower, Grueninger’s attorney, did not file a written motion to suppress Grueninger’s confession. But on the first day of trial, Clower belatedly took issue with the admissibility of the confession on Edwards grounds. When the prosecutor argued that Clower’s objection was untimely, Clower attempted to excuse his delay by explaining that he had only recently become aware of the relevant statements and the timeline; the prosecutor pointed out that in fact, Clower had been afforded “open file discovery,” including access to the video 5 of Klisz’s interactions with Grueninger. In any event, she argued, Grueninger’s request for a lawyer was not unequivocal, as required to trigger Edwards protections. The trial court overruled Clower’s objection without reaching the merits because Clower had failed to file a motion in limine. Instead, the court held that “ought to be dealt with as [it came] up” at trial. The confession “came up” at trial when the matter J.A. 74. the prosecutor elicited testimony from Klisz regarding Grueninger’s inculpatory statements. evidence, But the Clower trial did court not noted object. the At the importance close of testimony about his second interview with Grueninger: of Klisz’s “[I]f I find that Detective Klisz’s testimony was incredible and that the defendant did not make the statements . . . that have been attributed to him, then the whole case shifts into a different perspective.” J.A. 305. The court did find Klisz’s account of Grueninger’s confession credible, and it convicted Grueninger on all counts. On February 2, 2010, the court sentenced Grueninger to a total term suspended. of imprisonment On the sexual of 235 abuse years, with charges, all but Grueninger 88 was sentenced to 180 years with all but 74 suspended, and on the child pornography suspended. charges, to 55 years with all but 14 Grueninger appealed his convictions, arguing that 6 the evidence was not sufficient to sustain them. The Court of Appeals of Virginia affirmed and the Supreme Court of Virginia refused Grueninger’s petition for appeal. B. On July 25, 2011, Grueninger filed a pro se petition for a writ of habeas corpus in the Hanover Circuit Court, before the same judge who had presided over his trial. Grueninger alleged that the admission of his uncounseled confession to Klisz was unconstitutional under Edwards v. Arizona. He also argued, among numerous ineffective assistance claims, that Clower was ineffective for not moving to suppress his confession under Edwards. In opposing Grueninger’s petition, the Commonwealth produced an affidavit from Clower (the “Clower Affidavit”) that described the video of the first interaction between Klisz and Grueninger on the day of Grueninger’s arrest. According to Clower, “Detective Kliz [sic] did read the defendant his Miranda warning, and Attorney.’” that Grueninger J.A. 342. produced said are felonies, I need an Clower also described the circumstances Grueninger’s interview with Klisz: ‘These confession during the second “On a subsequent day Detective Kliz [sic] returned with new warrants. At that time, upon being served, 7 Mr. Grueninger volunteered statements that were later used in his conviction.” Id. The Circuit Court held that Grueninger was not entitled to relief on any of his claims and dismissed his petition. The court his determined that Grueninger procedurally defaulted substantive Edwards claim by failing to litigate it at trial or on direct appeal. And the court rejected Grueninger’s argument that this failure itself constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). According to the court, Grueninger’s statements to Klisz were spontaneous or “interrogation”: “voluntary” rather than the product of “The mere serving of the[] warrants [by Klisz] was not designed to provoke incriminating statements from the petitioner and was not an interrogation.” J.A. 347. It followed, the court held, that the statements would not have been suppressed under Edwards — which applies only when a suspect is interrogated — and therefore that Clower’s failure to move for suppression was neither deficient performance nor prejudicial under Strickland. Grueninger appealed the dismissal of petition to the Supreme Court of Virginia. his state habeas The Supreme Court summarily found that “there [was] no reversible error in the 8 judgment complained of” and refused the petition for appeal. J.A. 354. C. On June petition 12, under Virginia, 2 2013, 28 U.S.C. alleging habeas petition. Court that agreed § 2254 largely the that in the same a federal Eastern claims substantive defaulted. with filed as habeas District in his of state The district court agreed with the Circuit Grueninger’s procedurally connection Grueninger the trial As Edwards to Edwards ineffective was assistance the district “reasonably counsel claim, claim court eschewed in also moving to suppress,” quoting Clower’s statement in his affidavit that any such motion would alternative, the have been district “baseless.” court held, J.A. even if 41. a In motion the to suppress had been made and granted, the resulting exclusion of Grueninger’s outcome at confession trial: would “Even not without have led to Grueninger’s a different statement to Detective Klisz, overwhelming direct and circumstantial evidence of Grueninger’s rejected the guilt remainder existed.” of Id. Grueninger’s 2 The district claims, court dismissed Grueninger originally petitioned for federal habeas relief in the Western District of Virginia. The case was transferred to the Eastern District of Virginia and Grueninger filed a new habeas petition there. 9 Grueninger’s petition, and denied timely appeal a certificate of appealability. Grueninger granted a filed partial following issues: failing to a certificate of with this court. appealability as to We the “(1) Whether trial counsel was ineffective in seek pretrial suppression of Grueninger’s [inculpatory] statement under Edwards v. Arizona, 451 U.S. 477 (1981),” and demonstrates procedural “(2) if cause default so, and of whether prejudice his claim counsel’s to that ineffectiveness excuse his Grueninger’s statements were unconstitutionally obtained in violation of Edwards.” II. We review the district court’s denial of a habeas petition de novo. MacDonald v. Moose, 710 F.3d 154, 159 (4th Cir. 2013). Our analysis is circumscribed, however, by the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under 28 U.S.C. § 2254(d), “the availability of federal habeas relief ‘adjudicated is on limited the with merits’ respect in to claims state-court Harrington v. Richter, 562 U.S. 86, 92 (2011). previously proceedings.” A federal habeas court may not grant relief on such claims unless it concludes 10 that the state court’s merits determination “was contrary to, or involved an Federal unreasonable law” as set application forth by the of, clearly Supreme established Court, 28 U.S.C. § 2254(d)(1), or rested on “an unreasonable determination of the facts” in light of the evidentiary court, id. § 2254(d)(2). record before the state And a state court’s factual findings must be presumed correct, absent rebuttal by the petitioner by clear and convincing evidence. As the Supreme federal habeas correct governing Court relief has where legal Id. § 2254(e). made a clear, state principle from § court [the 2254(d) permits “identifies Supreme] the Court’s decisions but unreasonably applies that principle to the facts” of the prisoner’s case. Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). But that is unreasonable” a high threshold, determination federal habeas relief. by a and only state an court “objectively will warrant Id. at 520–21; see also Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011). III. A. Grueninger’s primary argument is that his counsel ineffective for failing to move to suppress his confession. 11 was We begin by setting out briefly the legal principles that govern this claim. In Edwards v. Arizona, the Supreme Court held that once a suspect invokes his right to counsel under Miranda, he is “not subject to further interrogation” by the police, unless — in an exception not relevant here — the suspect renewed communication with the police. himself initiates 451 U.S. at 484–85. If the police do interrogate a suspect in custody after he asserts his right to counsel, then any statements they elicit are per se inadmissible, even Miranda rights. if the suspect Id. at 487. is again advised of his To establish an Edwards violation, a petitioner must show both that he clearly and “unambiguously” invoked his right to counsel, Davis v. United States, 512 U.S. 452, 459 (1994); Edwards, 451 U.S. at 485 (police may not interrogate a suspect who has “clearly asserted” his Miranda right to counsel), “interrogated” “further him, and also Edwards, police-initiated that 451 the U.S. custodial police at 484 subsequently (prohibiting interrogation” after invocation); see Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) (“Miranda safeguards come into play” when police engage in “interrogation” of a suspect in custody). Claims of ineffective assistance of counsel are evaluated under the framework set out in Strickland v. Washington. 12 To prevail, a petitioner constitutionally identified acts must deficient or show that performance, omissions were lawyer meaning outside professionally competent assistance.” 690. his the rendered that wide “the range of Strickland, 466 U.S. at Under Strickland, courts are to “take a highly deferential look at counsel’s performance,” so that review of a state-court finding on deficiency becomes “doubly deferential” under AEDPA. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citations and internal quotation marks omitted). And a petitioner also must show prejudice from counsel’s deficiencies, meaning “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” We have Strickland, 466 U.S. at 694. further refined the Strickland analysis as it applies in cases, like this one, where an ineffectiveness claim is based on counsel’s failure to file a motion to suppress. Under the enough to deficient call into performance question prong counsel’s of Strickland, performance unfiled motion would have had “some substance.” at 104. it is that an Tice, 647 F.3d And the prejudice prong in such cases has two distinct components, with the petitioner required to show both (1) that the motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would 13 have affected the outcome of his trial. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Tice, 647 F.3d at 104, 107–08. B. In applying § 2254(d) in this case, we “look through” the Supreme Court of Virginia’s summary refusal to hear Grueninger’s appeal and evaluate the Circuit Court’s reasoned decision on Grueninger’s claim. See Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015) (applying “look through” doctrine to evaluate state trial court’s reasoned decision denying claim on the merits where state supreme court summarily denied petition for review); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (federal habeas courts should presume that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same decision that AEDPA’s highly ground”). we review In for deferential other words, “objective standard is the state-court reasonableness” that of the under Hanover Circuit Court, applying the Edwards interrogation requirement to deny Grueninger’s ineffective assistance claim. The Commonwealth appears to argue for a different approach. Under Harrington v. Richter, an unexplained state supreme court judgment may be disturbed under § 2254(d) only if there is “no reasonable basis for the state court to deny relief.” 14 562 U.S. at 98 (emphasis added). So here, the Commonwealth suggests, where the Supreme Court of Virginia summarily refused to hear Grueninger’s appeal, Grueninger can prevail only by showing that any hypothetical ground for denying his claim, whether or not addressed by the Circuit Court, would be objectively unreasonable. 3 We disagree. Richter addressed a situation in which a state habeas petition was presented directly to a state supreme court as an original petition and then denied by that court in a one-sentence summary order, so decision by any state court. that there was no 562 U.S. at 96–97. reasoned In those circumstances, the Court held, where there is no indication of the state court’s reasoning, a federal habeas petitioner must show that there was “no reasonable basis for the state court to deny relief,” id. at 98, and a federal habeas court must defer under AEDPA to any reasonable “arguments or theories . . . [that] could have supported[] the state court’s decision,” id. at 102 (emphasis added). 3 To be sure, though this appears to be the premise of the Commonwealth’s brief, the issue is not clearly addressed. Nor, for that matter, does Grueninger plainly confront this issue in his briefs. At oral argument, however, both parties clarified their respective positions, and we address them here. 15 But “[b]y its terms,” Richter is limited to cases “‘where a state court’s Woolley v. decision Rednour, is unaccompanied 702 F.3d 411, by 422 an explanation.’” (7th Cir. 2012) (alteration omitted) (quoting Richter, 562 U.S. at 98). situation is different explaining the appellate court when rejection of summarily there a is a claim. affirms a The state-court decision Id. a When reasoned state lower-court decision, or refuses a petition for review, then under Ylst, a federal habeas court is to “look through” the unexplained affirmance to examine the “last reasoned decision” on the claim, assuming that the summary appellate decision rests on the same ground. 501 U.S. at 803–04, 806. “The maxim is that silence implies consent, not the opposite — and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below.” Id. at 804. Court of So in our case, we may assume that the Supreme Virginia has endorsed the reasoning of the Circuit Court in denying Grueninger’s claim, and it is that reasoning that we are to evaluate against the deferential standards of § 2254(d). We recognize that the relationship between Richter and Ylst has generated some questions in the courts of appeals, though many courts have continued to apply Ylst even after the later16 decided Richter, “looking through” summary state-court affirmances and affording AEDPA deference only to the grounds on which the last reasoned state-court decision rests. See Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (concluding that if the Supreme Court had intended to disrupt “common practice” under Ylst when it decided Richter, it would have made that intention clear). 4 issue, though we Our court has not passed directly on the have questioned whether Ylst, which was concerned with determining whether a state court had refused relief on state procedural grounds, applies “where a state procedural bar is not at issue” and the last reasoned statecourt decision is on the merits. Tice, 647 F.3d at 106. 5 4 Other cases holding that Ylst survives Richter and continuing to apply the “look through” doctrine to summary appellate affirmances include Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460, 462 (6th Cir. 2015); Lee v. Corsini, 777 F.3d 46, 54 (1st Cir. 2015); Woodfox v. Cain, 772 F.3d 358, 369–70 (5th Cir. 2014); and Eichwedel v. Chandler, 696 F.3d 660, 671–72 (7th Cir. 2012). The Eleventh Circuit appears to have taken a contrary view. Hittson v. GDCP Warden, 759 F.3d 1210, 1232 n.25 (11th Cir. 2014). 5 Cases applying Ylst where there is no procedural bar at issue and the last reasoned state-court decision addresses a claim’s merits include Cannedy, 706 F.3d at 1158; Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010); Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008); Mark v. Ault, 498 F.3d 775, 782–83 (8th Cir. 2007); and McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003). 17 But to the extent there has been any doubt about the scope and continued vitality of Ylst after Richter, we think the Supreme Court clarified the matter in its decision of this year in Brumfield, when it applied Ylst on federal habeas review to “look through” a state supreme court’s summary denial of a petition for review to evaluate a state trial court’s reasoned decision denying a petitioner’s claim on the merits. 135 S. Ct. at the 2276. Deference under 28 U.S.C. § 2254(d), Court explained, extended only to the points actually determined by the state trial court in its reasoned decision; the Richter rule requiring deference to “hypothetical reasons [a] state court might have given for rejecting [a] federal claim” is limited to cases in which no state court has reasons for the denial of relief. issued an opinion giving Id. at 2282–83. 6 In light of Brumfield, it is clear that the decision we are to evaluate under § 2254(d) is the determination of the Hanover Circuit Court that Grueninger could not make out an Edwards violation and that his counsel therefore was not ineffective for 6 On this point, the Supreme Court appears to have been unanimous. While the dissent in Brumfield disagreed with the majority’s assessment of the state trial court decision under § 2254(d), it did not take issue with application of the “look through” doctrine, and itself applied § 2254(d) only to the reasoned decision of the trial court. 135 S. Ct. at 2289–90 (Thomas, J., dissenting). 18 failing to move to suppress his confession. It is to that determination that we now turn. C. In rejecting Grueninger’s ineffective assistance claim, the Circuit Court reasoned as follows: The Court finds reasonable counsel’s decision not to file a suppression motion, where petitioner made voluntary statements in response to being served with warrants one day in jail. (Exhibit 1; Affidavit of Michael Clower). The mere serving of these warrants was not designed to provoke incriminating statements from the petitioner and was not an interrogation, thus counsel correctly determined that the statements would not have been suppressed. The Court dismisses this claim for failure to establish deficient performance or prejudice. Strickland, 466 U.S. 668. J.A. 347. With due respect to the state court, we find that determination to be objectively unreasonable under § 2254(d). First, there is no question (and indeed, the Commonwealth does not dispute) that when Klisz visited Grueninger in jail on March 16 to serve new arrest warrants, he questioned Grueninger about the charges against him. Klisz’s trial testimony leaves no room for doubt on this point: “[A]fter you read him Miranda, When the prosecutor asks, did he answer any of your questions?” Klisz replies, “He did. . . . I asked him questions and he talked about — we talked about the case,” and then, just a few moments later, elaborates, “I asked him about the charges, they were all of a sexual nature.” 19 J.A. 87–88 (emphasis added). Second, it is equally plain (and again, the Commonwealth concedes) that the asking of questions about the substance of a case constitutes “interrogation” Innis, 446 U.S. at 300–01. defining “interrogation” for Edwards purposes. See The difficult issue when it comes to is not whether “express questioning” counts — it does — but whether police conduct short of direct questioning might also be covered. In Innis, the Supreme Court answered affirmative, that question in the holding that “interrogation” includes not only “express questioning” but also its “functional equivalent” — “words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. (footnotes omitted). The Circuit Court appears to have held that Klisz’s serving of a new arrest warrant on Grueninger did not rise to the level of “interrogation” under this alternative definition, as it was not “designed to provoke incriminating statements from the petitioner.” J.A. 347. here substitution with the Circuit Court’s We need not quibble of a subjective standard (“designed to” elicit) for Innis’s objective standard (“should know are reasonably likely to” elicit), and may assume that the state court correctly, or at least not unreasonably under § 2254(d), determined that confronting Grueninger with the new arrest warrant did not itself constitute “interrogation.” 20 But that is beside the point, because under any reading of the Supreme Court’s established precedent, Klisz’s “express questioning” of Grueninger about the charges against him surely does qualify as “interrogation” under Edwards. Innis, 446 U.S. at 300–02. The assistance Circuit claim interrogation, Court on the rejected ground Grueninger’s Grueninger’s that statements because would ineffective there not was have no been suppressed even if his counsel had moved to exclude them under Edwards. J.A. 347 (“[There] was not an interrogation, thus counsel correctly determined that the statements would not have been suppressed. establish The Court dismisses this claim for failure to deficient performance or prejudice.”). The Commonwealth does not defend that holding, and we believe the Circuit Court’s decision “involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States” under § 2254(d)(1). 7 7 Though we hesitate to read too far between the lines of the Circuit Court decision, we recognize that it may have been informed by the Clower Affidavit’s assertion that “upon being served [with the new arrest warrant by Klisz], Mr. Grueninger volunteered statements that were later used in his conviction,” J.A. 342 (emphasis added). Given the context, we assume that Clower was using “volunteered” to signify only that Grueninger’s statements were uncoerced and came after Miranda warnings, not that they were spontaneous utterances unrelated to questioning. But to the extent the Circuit Court ruling rests on a factual 21 D. The Commonwealth Grueninger’s grounds. urges ineffective First, the us to assistance Commonwealth affirm claim the on argues, dismissal two the of alternative Circuit Court determination that any Edwards motion to suppress would have been denied turns out to be correct, not because there was no interrogation, but because Grueninger invoke his Miranda right to counsel. contends, the district court did not unequivocally Second, the Commonwealth properly found that even had Grueninger’s confession been suppressed, there was no reasonable probability that the result of his trial different, and so no Strickland prejudice. would have been Because the state court did not reach these questions, we consider them de novo. See Brumfield, 135 S. Ct. at 2282 (where state trial court does not make finding on particular component of claim, there is “no determination on that point to which a federal court must defer” under § 2254(d)); Wiggins, 539 U.S. at 534 (no AEDPA deference in evaluating prong of Strickland analysis that state court has not reached); see also Early v. Packer, 537 U.S. 3, 8 (2002) finding that Klisz did not question Grueninger, we conclude that it is “based on an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), in light of Klisz’s pellucid trial testimony. 22 (per curiam) reasoning (habeas [or] the relief result may of be the granted if state-court either “the decision” is objectively unreasonable under 2254(d)). 8 1. The Commonwealth’s primary argument is that Grueninger can establish neither Strickland denied. deficient because any performance suppression nor motion prejudice would have under been Relying on Clower’s representations in his affidavit, the Commonwealth insists that Clower made a deliberate tactical decision to forgo a suppression motion under Edwards, predicated on his judgment that such a motion would be “baseless” because Grueninger did not use “the terminology needed to evoke [sic] his Miranda rights” when he Clower Affidavit, J.A. 342–43. said, “I need an [a]ttorney.” We disagree. 8 We do not understand the Commonwealth to argue against this application of Brumfield and Wiggins. Once it is established that the state-court decision we review under § 2254(d) is that of the Circuit Court, it follows that deference under § 2254(d) is owed only to the actual determinations of that court and not those that it hypothetically might have made; that is why Ylst’s “look through” doctrine matters in the first place. See Brumfield, 135 S. Ct. at 2282–83 (contrasting Wiggins and Richter). And if there were any question as to whether Wiggins survives Richter, we think it was resolved by the Supreme Court’s recent decision in Brumfield, applying Wiggins to review de novo one component of a claim under Atkins v. Virginia, 536 U.S. 304 (2002), because it was not addressed by the last reasoned state-court decision. 135 S. Ct. at 2282. 23 We recognize that review of counsel’s performance under Strickland is deferential, respecting the “wide latitude counsel must have in making tactical decisions.” Strickland, 466 U.S. at 689. But on this record, it is hard to discern any tactics at all. Clower did not, in fact, forgo an Edwards objection; he raised the Edwards issue on the first day of trial. The only thing forgone was the opportunity to make his Edwards argument in a timely manner and in writing, as required by local rules — or, once that opportunity was lost, to accept the invitation of the trial judge introduced. to object at trial when the confession was A strategic judgment that “baseless motions” should be avoided, see Clower Affidavit, J.A. 343, may be well-founded, but it cannot explain a decision to raise a “baseless” claim only in an improper manner that ensures its denial. See Tice, 647 on F.3d review at 105–06 and (finding declining deficient “to performance engage in habeas after-the-fact rationalization of a litigation strategy that almost certainly was never contemplated”); Richards v. Quarterman, 566 F.3d 553, 570 (5th Cir. 2009) (finding deficient performance on federal habeas review failure to seek where counsel’s admission of “proffered evidence explanations” “ma[de] failed to “explain the basis” for her actions). 24 no sense” for and Regardless, any determination by Clower that he could not defend “agreed a suppression that motion [Grueninger] because did not he evoke and the [sic] prosecutor his Miranda rights,” Clower Affidavit, J.A. 342, appears to rest less on informed legal judgment than on a legal misapprehension — which of course will not excuse deficient performance, see Winston v. Pearson, 683 F.3d 489, 504–05 (4th Cir. 2012). Edwards protections are triggered only As noted above, if a suspect “unambiguously” invokes his right to counsel under Miranda, by “articulat[ing] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459. We think that standard was met when Grueninger, in response to being advised of his Miranda right to counsel, said, “These are felonies, I need an [a]ttorney.” J.A. 342. We of course acknowledge, as the Commonwealth argues, that “merely mentioning an attorney” is not enough to invoke under Davis. But Grueninger’s statement — “I need an attorney” — contains none of the hedges or equivocations that might make it unclear counsel. to a reasonable officer whether he was requesting Cf., e.g., Mueller v. Angelone, 181 F.3d 557, 573–74 (4th Cir. 1999) (“Do you think I need an attorney here?” does 25 not unambiguously invoke); Johnson v. Harkleroad, 104 F. App’x 858, 867 (4th Cir. 2004) (unpublished) (“maybe I should stop talking and get a lawyer” does not unambiguously invoke). is there anything Grueninger’s instance, about statement in which the context ambiguous. a suspect that This says is “I need might not a a Nor render case, lawyer” for mid- interview, and then immediately continues to answer questions, cf. United States v. Eligwe, 456 F. App’x 196, 197–98 (4th Cir. 2011) (unpublished), so assistance that in it may be connection unclear with whether the he desires legal questioning itself. Here, by contrast, Grueninger said “I need an attorney” in response to being read his Miranda rights, leaving no doubt that he is referring present during police officer to the questioning. in the Miranda And right indeed, circumstances” to that would have counsel a “reasonable so understand Grueninger’s statement, see Davis, 512 U.S. at 459, appears to be confirmed by the fact that Klisz himself understood it that way, asking no further questions once Grueninger announced his need for a lawyer. In considering whether counsel’s failure to move to suppress a confession was deficient under Strickland, we ask whether a motion to suppress would have had “some substance.” Tice, 647 F.3d at 104. And in connection with Strickland’s 26 prejudice prong, we evaluate whether the underlying “claim is meritorious,” Kimmelman, 477 U.S. at 375, so that a motion to suppress likely would have been granted. 9 Because, as discussed above, Grueninger was interrogated by the police after invoking his Miranda right to counsel, we conclude that an Edwards motion to suppress not only would have had “some substance,” but also would have been meritorious and likely granted, but for counsel’s deficient performance. 10 9 We note that courts have differed slightly in their formulation of this standard. See, e.g., Ray v. United States, 721 F.3d 758, 763 (6th Cir. 2013) (must be “reasonably likely” that a court would grant the motion to suppress); Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (petitioner must show a “reasonable probability that the motion would have been granted”); Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (petitioner must show that “it is reasonable that the trial court would have granted [the unfiled motion] as meritorious”). In Tice, we had no occasion to parse the standard so finely, concluding simply that “had the motion to suppress been made, the trial court would have had little choice but to grant it.” 647 F.3d at 107. Here, too, the matter is clear enough that we need not bear down on the precise formulation. 10 We cannot agree with the Commonwealth’s novel argument that we should defer to the Circuit Court ruling that the statements would not have been suppressed because the judge who made that determination on collateral review is the same judge who presided over Grueninger’s trial, making him “uniquely qualified” to predict whether he himself would have granted an Edwards motion. Response Br. at 7. The question under Strickland and Kimmelman is whether an unfiled motion to suppress would have been “meritorious” as an objective matter, Kimmelman, 477 U.S. at 375, not whether a particular judge — based on argument, we note, by putatively deficient counsel — might nevertheless have denied it. Cf. Tice, 647 F.3d at 105–06 27 2. Finally, the Commonwealth argues that the district court correctly held that even if a motion to suppress would have been granted, there is no “reasonable probability” that exclusion of Grueninger’s confession would have affected the trial’s outcome, as is necessary to complete Kimmelman and Strickland. the prejudice showing under See Kimmelman, 477 U.S. at 375. We review the district court’s holding on this question de novo, see Washington v. Murray, 4 F.3d 1285, 1288 (4th Cir. 1993) (holdings about deficient performance and prejudice under Strickland are mixed questions of law and fact subject to de novo review); Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (de novo review where district court habeas decision is based exclusively on state-court record), and come to a different conclusion. As we have recognized, “a confession can have . . . a devastating and pervasive effect” on the outcome of a trial. United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994); see also Arizona v. Fulminante, 499 U.S. confession is like no other evidence.”). 279, 296 (1991) (“A This is a case in (performance and prejudice prongs of Strickland are not pure questions of fact on which trial court is presumed correct). 28 point. Grueninger’s statements, introduced at trial by way of Klisz’s testimony, were detailed and deeply disturbing. As Klisz recounted: I asked him about the charges, they were all of a sexual nature. During that time, he admitted to performing oral sex on [his daughter] on at least two occasions. . . . [H]e said that [his daughter] had come to him and wanted him to perform oral sex on her because she was curious. He also said that ejaculating on his daughter during those same incidents was part of what was going on. He said he had [his daughter] clean herself up — clean herself up afterwards. He also said that he had shaved his daughter’s pubic hair because she wanted him to. He also said that he regularly bathed naked with [his daughter], had been doing it for a long time since she was little. I asked him if he had touched his daughter’s vagina with his finger. He denied that he had, but he said that he had helped her with a yeast infection suppository because it kept slipping out of her fingers, so he put it in her vagina for her. J.A. 88. indelible That testimony almost certainly would have left an impression on the court as it conducted its bench trial. 11 The independent evidence against Grueninger, on the other hand, while substantial, was not so overwhelming that we can be confident Grueninger would have been convicted of sexual abuse 11 Our objective assessment of the likely prejudicial effect of Grueninger’s confession is, we note, consistent with the trial court’s own understanding of the confession’s importance. As that court explained, summing up the evidence at the conclusion of Grueninger’s trial, “the whole case shifts into a different perspective” if Klisz’s testimony is credited and Grueninger’s confession taken into account. J.A. 305. 29 even without his confession. Commonwealth relied Grueninger’s daughter, evidence on the at abuse In addition to the confession, the trial the chiefly only on witness charges. Her the to testimony provide testimony was of direct damning, charging Grueninger with “putting his parts all over” hers and touching her in a sexual way “whenever he got the chance.” 112–13, 124. But the defense was able to raise questions about the reliability of that testimony. instance, J.A. Grueninger’s daughter On cross-examination, for admitted that she had denied earlier that Grueninger had abused her and then accused him only after they had a fight, and that she had vivid sexual fantasies and found it “hard to tell what’s fantasy and what’s real,” J.A. 139. And the Commonwealth’s own expert in electronic evidence contradicted the daughter’s account that Grueninger had shown her pornography on her computer. 12 None testify of the directly daughter. Protective Commonwealth’s that Testimony Services other Grueninger of worker a nurse had witnesses sexually practitioner established 12 three that the could abused and a his Child daughter had Though the trial court ultimately credited the daughter’s testimony, it recognized that it was less than “airtight,” J.A. 306, and that the court was evaluating the testimony in light of Grueninger’s confession, which was the “given on which to go forward,” J.A. 305. 30 reported sexual abuse and showed physical evidence consistent with sexual trauma, but did not tie Grueninger himself to any abuse or trauma aside from his daughter’s statements to them. Grueninger’s wife Grueninger, but was that able to testify testimony was to particular limited to acts having by seen Grueninger bathe with their daughter and shave her pubic hair. Grueninger’s wife also read letters from Grueninger apologizing for the harm he had caused their daughter and asking that they recant, but the letters did not mention any specific acts, and Grueninger claimed at trial that he had been apologizing for his role in his daughter’s emotional breakdown and not for any sexual abuse. We do not mean to suggest that the Commonwealth’s independent evidence was insubstantial, or that it could not have supported a guilty verdict in the absence of Grueninger’s confession. Strickland, But that is not the standard we are to apply. 466 U.S. at 693 (petitioner need not show See that counsel’s deficiency “more likely than not altered the outcome in the case”). Instead, the question is whether there is a “reasonable probability” of a different outcome at trial had Grueninger’s confession been excluded. See id. at 694. Given the centrality of the confession to this case, we cannot be confident that there is no “reasonable 31 probability” that Grueninger’s confession affected the outcome of his trial on the sexual abuse charges. We reach a different judgment, however, with respect to the child pornography convicted. As charges to these on which charges, Grueninger Grueninger’s Klisz were of very limited relevance. also statements was to The entirety of Klisz’s testimony on this point was that when asked about his computer use, Grueninger said “the main computer he used in the house was the laptop.” J.A. 88. But whether or not Grueninger used the laptop, the Commonwealth presented overwhelming evidence tying him to a thumb drive that contained photographs and videos of child pornography, found in Grueninger’s own dresser drawer along with adult pornographic DVDs, a sex vibrator, and personal lubricant. And even as to the laptop, with or without Grueninger’s confession, the Commonwealth established at trial that pornographic images of children were found on the laptop in a folder under a partition labeled “Eric,” Grueninger’s first name. In light of this compelling independent evidence and the marginal relevance of Grueninger’s statement to Klisz, we see no reasonable probability that admission of Grueninger’s confession altered the outcome of his trial charges. 32 on the child pornography In sum, we find that with respect to his convictions on sexual abuse charges, Grueninger has demonstrated ineffective assistance of counsel under both the deficient performance and prejudice court’s prongs of dismissal convictions. We Strickland, of his remand and habeas with we reverse petition instructions the as that district to the those district court issue Grueninger a writ of habeas corpus as to the sexual abuse charges unless the Commonwealth endeavors, within a reasonable period of time, to prosecute him in a new trial on those counts without utilizing the confession. With respect to his convictions on the child pornography charges, we find that Grueninger has not confession altered shown the a reasonable outcome of his probability trial, as that required his to demonstrate prejudice under Strickland, and we therefore affirm the district court order in that respect. 13 13 For the same reason, we hold that Grueninger cannot show “prejudice” sufficient to excuse the procedural default of his substantive Edwards claim as it pertains to the child pornography charges. To obtain federal habeas review of a procedurally defaulted claim, a petitioner must show both “cause for the default and actual prejudice” from a violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Though the “[c]onstitutionally deficient performance” of Grueninger’s counsel may constitute “cause” under this standard, see Reid v. True, 349 F.3d 788, 806 (4th Cir. 2003), Grueninger cannot demonstrate the requisite “prejudice,” as discussed above, and so his stand-alone Edwards claim does not provide an alternative basis for reversing his child pornography convictions. And because Grueninger prevails on his Strickland 33 IV. For the foregoing reasons the judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. claim as to the sexual abuse address those charges further. charges, 34 there is no need to
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