Grueninger v. Director, Virginia Department of Corrections , 813 F.3d 517 ( 2016 )

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 abusing his fourteen-year-old daughter. During his
first interview with the police investigator, Grueninger was
read his Miranda rights and said, “I need an attorney.” Three
days later, the investigator re-interviewed him without an
attorney present, and this time, Grueninger confessed to
performing various sexual acts with his daughter. Grueninger
ultimately was tried on sexual abuse and 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 collateral review, Grueninger argued that his
attorney’s failure to move to suppress his confession 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 that claim, holding that Grueninger had not been
“interrogated” for Edwards purposes, and that his 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 and other sexual contact with his
fourteen-year-old daughter. 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 J.A. 342. Grueninger
1 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. Klisz found three thumb drives in
Grueninger’s top dresser drawer, one of which contained
photographs and videos of child pornography. He also discovered
a laptop in the home’s work room. 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 suppository into her vagina, and bathing with her
naked. 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 of child
pornography (the “child pornography charges”). 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 of Klisz’s interactions with
5
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 the matter
“ought to be dealt with as [it came] up” at trial. J.A. 74.
The confession “came up” at trial when the prosecutor
elicited testimony from Klisz regarding Grueninger’s inculpatory
statements. But Clower did not object. At the close of
evidence, the trial court noted the importance of Klisz’s
testimony about his second interview with Grueninger: “[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 of imprisonment of 235 years, with all but 88
suspended. On the sexual abuse charges, Grueninger was
sentenced to 180 years with all but 74 suspended, and on the
child pornography charges, to 55 years with all but 14
suspended. 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 Grueninger said ‘These are felonies, I need an
Attorney.’” J.A. 342. Clower also described the circumstances
that produced Grueninger’s confession during the second
interview with Klisz: “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 determined that Grueninger procedurally defaulted his
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 “voluntary” rather than the product of
“interrogation”: “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 his state habeas
petition to the Supreme Court of Virginia. 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 12, 2013, Grueninger filed a federal habeas
petition under 28 U.S.C. § 2254 in the Eastern District of
Virginia, 2 alleging largely the same claims as in his state
habeas petition. The district court agreed with the Circuit
Court that Grueninger’s substantive Edwards claim was
procedurally defaulted. As to ineffective assistance in
connection with the Edwards claim, the district court also
agreed that trial counsel “reasonably eschewed moving to
suppress,” quoting Clower’s statement in his affidavit that any
such motion would have been “baseless.” J.A. 41. In the
alternative, the district court held, even if a motion to
suppress had been made and granted, the resulting exclusion of
Grueninger’s confession would not have led to a different
outcome at trial: “Even without Grueninger’s statement to
Detective Klisz, overwhelming direct and circumstantial evidence
of Grueninger’s guilt existed.” Id. The district court
rejected the remainder of Grueninger’s claims, dismissed
2
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 a certificate of
appealability.
Grueninger filed a timely appeal with this court. We
granted a partial certificate of appealability as to the
following issues: “(1) Whether trial counsel was ineffective in
failing to seek pretrial suppression of Grueninger’s
[inculpatory] statement under Edwards v. Arizona, 451 U.S. 477
(1981),” and “(2) if so, whether counsel’s ineffectiveness
demonstrates cause and prejudice to excuse Grueninger’s
procedural default of his claim that his 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 is limited with respect to claims previously
‘adjudicated on the merits’ in state-court proceedings.”
Harrington v. Richter, 562 U.S. 86, 92 (2011). 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 unreasonable application of, clearly established
Federal law” as set forth by the Supreme Court, 28 U.S.C.
§ 2254(d)(1), or rested on “an unreasonable determination of the
facts” in light of the evidentiary record before the state
court, id. § 2254(d)(2). And a state court’s factual findings
must be presumed correct, absent rebuttal by the petitioner by
clear and convincing evidence. Id. § 2254(e).
As the Supreme Court has made clear, § 2254(d) permits
federal habeas relief where a state court “identifies the
correct governing legal principle from [the Supreme] 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 a high threshold, and only an “objectively
unreasonable” determination by a state court will warrant
federal habeas relief. 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 was
ineffective for failing to move to suppress his confession. We
11
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 himself initiates
renewed communication with the police. 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 if the suspect is again advised of his
Miranda rights. Id. at 487. 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), and also that the police subsequently
“interrogated” him, Edwards, 451 U.S. at 484 (prohibiting
“further police-initiated custodial 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. To
12
prevail, a petitioner must show that his lawyer rendered
constitutionally deficient performance, meaning that “the
identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at
690. 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.” Strickland, 466 U.S. at 694.
We have 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 deficient performance prong of Strickland, it is
enough to call into question counsel’s performance that an
unfiled motion would have had “some substance.” Tice, 647 F.3d
at 104. 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 ground”). In other words, the state-court
decision that we review for “objective reasonableness” under
AEDPA’s highly deferential standard is that of the 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.” 562 U.S.
14
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 that there was no reasoned
decision by any state court. 562 U.S. at 96–97. 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 decision is unaccompanied by an explanation.’”
Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012)
(alteration omitted) (quoting Richter, 562 U.S. at 98). The
situation is different when there is a state-court decision
explaining the rejection of a claim. Id. When a state
appellate court summarily affirms a reasoned 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. So in our case, we may assume that the Supreme
Court of 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 later-
16
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 Our court has not passed directly on the
issue, though we 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 state-
court 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 2276. Deference under 28 U.S.C. § 2254(d), the 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 issued an opinion giving
reasons for the denial of relief. 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: When the prosecutor asks,
“[A]fter you read him Miranda, 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.” J.A. 87–88 (emphasis added).
19
Second, it is equally plain (and again, the Commonwealth
concedes) that the asking of questions about the substance of a
case constitutes “interrogation” for Edwards purposes. See
Innis, 446 U.S. at 300–01. The difficult issue when it comes to
defining “interrogation” 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 that question in the affirmative, 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. We need not quibble
here with the Circuit Court’s substitution 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 Circuit Court rejected Grueninger’s ineffective
assistance claim on the ground that because there was no
interrogation, Grueninger’s statements would not have 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. The Court dismisses this claim for failure to
establish 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 urges us to affirm the dismissal of
Grueninger’s ineffective assistance claim on two alternative
grounds. First, the Commonwealth argues, the 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 did not unequivocally
invoke his Miranda right to counsel. Second, the Commonwealth
contends, the district court properly found that even had
Grueninger’s confession been suppressed, there was no reasonable
probability that the result of his trial would have been
different, and so no Strickland prejudice. 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) (habeas relief may be granted if either “the
reasoning [or] the result of the state-court decision” is
objectively unreasonable under 2254(d)). 8
1.
The Commonwealth’s primary argument is that Grueninger can
establish neither deficient performance nor prejudice under
Strickland because any suppression motion would have been
denied. 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 said, “I need an [a]ttorney.”
Clower Affidavit, J.A. 342–43. 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 to object at trial when the confession was
introduced. 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 F.3d at 105–06 (finding deficient performance on habeas
review and declining “to engage in 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 where counsel’s “proffered explanations” for
failure to seek admission of evidence “ma[de] no sense” and
failed to “explain the basis” for her actions).
24
Regardless, any determination by Clower that he could not
defend a suppression motion because he and the prosecutor
“agreed that [Grueninger] did not evoke [sic] 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). As noted above,
Edwards protections are triggered only 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 to a reasonable officer whether he was requesting
counsel. 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). Nor
is there anything about the context that might render
Grueninger’s statement ambiguous. This is not a case, for
instance, in which a suspect says “I need a lawyer” 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 that it may be unclear whether he
desires legal assistance in connection with the 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 to the Miranda right to have counsel
present during questioning. And indeed, that a “reasonable
police officer in the circumstances” would 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 the prejudice showing under
Kimmelman and Strickland. 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. 279, 296 (1991) (“A
confession is like no other evidence.”). 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. That testimony almost certainly would have left an
indelible 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. In addition to the confession, the
Commonwealth relied at trial chiefly on the testimony of
Grueninger’s daughter, the only witness to provide direct
evidence on the abuse charges. Her testimony was damning,
charging Grueninger with “putting his parts all over” hers and
touching her in a sexual way “whenever he got the chance.” J.A.
112–13, 124. But the defense was able to raise questions about
the reliability of that testimony. On cross-examination, for
instance, Grueninger’s daughter 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 of the Commonwealth’s other three witnesses could
testify directly that Grueninger had sexually abused his
daughter. Testimony of a nurse practitioner and a Child
Protective Services worker established that the daughter had
12
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 was able to testify to particular acts by
Grueninger, but that testimony was limited to having 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. But that is not the standard we are to apply. See
Strickland, 466 U.S. at 693 (petitioner need not show 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 probability” that
31
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 charges on which Grueninger also was
convicted. As to these charges, Grueninger’s statements to
Klisz were of very limited relevance. 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 on the child pornography
charges.
32
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 prongs of Strickland, and we reverse the district
court’s dismissal of his habeas petition as to those
convictions. We remand with instructions that the 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 shown a reasonable probability that his
confession altered the outcome of his trial, as required to
demonstrate prejudice under Strickland, and we therefore affirm
the district court order in that respect. 13
13For 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 charges, there is no need to
address those charges further.
34