John Moss, III v. David Ballard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7354
JOHN MOSS, III,
Petitioner - Appellant,
v.
DAVID BALLARD, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:09-cv-01406)
Argued: May 14, 2013 Decided: August 2, 2013
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and WYNN and
DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Associate Justice O’Connor and Judge Diaz concurred.
ARGUED: Stuart McCommas, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Robert David Goldberg, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee. ON BRIEF: Neal L. Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville,
Virginia, for Appellant. Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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WYNN, Circuit Judge:
Petitioner John Moss, III confessed three times to
murdering a mother and her two children in West Virginia.
Despite Moss’s attempts to suppress those confessions as
involuntary, the state trial court admitted them at trial, and a
jury convicted Moss of three counts of first-degree murder. On
appeal, the Supreme Court of Appeals of West Virginia (“West
Virginia Supreme Court”) reversed the convictions based on
multiple errors at trial. Of particular import to the appeal
before us, the West Virginia Supreme Court concluded that
although all of the confessions were obtained in violation of
West Virginia’s juvenile prompt presentment statute, only the
third confession had been improperly admitted because it was the
only confession that Moss’s counsel had objected to on that
basis. Thereafter, Moss was retried and again convicted of
three counts of first-degree murder.
After the denial of several state habeas petitions, Moss
filed a federal habeas petition. The district court dismissed
Moss’s petition, declining to address whether counsel in his
first trial was ineffective and rejecting his argument that his
confessions were involuntary. This Court granted Moss’s request
for a certificate of appealability to determine “(1) whether
Moss’[s] first trial counsel was ineffective in failing to
object to the admission of his [first two] confessions on the
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ground that they were taken in violation of West Virginia’s
juvenile presentment law,” and “(2) whether the district court
satisfied the independent analysis requirement in Miller v.
Fenton, 474 U.S. 104 (1985), for determining the voluntariness
of Moss’[s] confession.” Upon review of these issues on appeal,
we affirm the district court’s dismissal of Moss’s habeas
petition.
I.
In 1980, Moss confessed to murdering a mother and her two
children in West Virginia in 1979. Specifically, on October 28,
1980, as two West Virginia State Troopers transported Moss from
an Ohio detention center to West Virginia, Moss indicated that
he would discuss the murders. The troopers then brought Moss to
a West Virginia police detachment center where Moss signed a
Miranda waiver and orally confessed to the murders. Later the
same night, Moss signed a second Miranda waiver and gave a tape-
recorded confession. And, while being driven back to Ohio on
October 30, 1980, Moss confessed to the murders a third time.
Moss was seventeen years old at the time of the murders and
eighteen years old when he confessed. 1 Following his
1
See W. Va. Code § 49-5-1(a) (1978) (a defendant nineteen
or under charged with committing an offense while under eighteen
must be remanded to the trial court’s juvenile jurisdiction).
4
confessions, Moss was charged with three counts of first-degree
murder.
Before trial, Moss moved to suppress his confessions. Moss
initially challenged only his first two confessions, arguing in
part that they were involuntary because the officers coerced him
and disregarded his request for an attorney. After a
suppression hearing, the court rejected Moss’s arguments, denied
his motion to suppress, and admitted the first two confessions.
Later, Moss also moved to suppress his third confession. At
that hearing, Moss’s counsel again argued that the confession
was involuntary, but additionally argued that Moss was not taken
before a neutral judicial officer in violation of West
Virginia’s juvenile prompt presentment statute. That statute
required that a juvenile be immediately taken before a neutral
judicial officer when taken into custody. W. Va. Code § 49-5-
8(d) (1978). Despite this additional argument, the court also
admitted Moss’s October 30 confession.
In April 1984, a jury convicted Moss of three counts of
first-degree murder, and the court sentenced him to three
consecutive terms of life imprisonment without mercy.
One year after Moss’s trial, the West Virginia Supreme
Court ruled that any confession obtained in violation of West
Virginia’s juvenile prompt presentment statute must be excluded
from evidence if it appeared that the primary purpose of the
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presentment delay was to obtain a confession from the juvenile.
State v. Ellsworth, 331 S.E.2d 503, 508 (W. Va. 1985). Three
years after that, the West Virginia Supreme Court reversed
Moss’s convictions on appeal and remanded for a new trial
because of multiple trial errors, including failure to poll the
jury, improper prosecutorial remarks, and improper admission of
evidence. State v. Moss, 376 S.E.2d 569, 572 (W. Va. 1988).
The court further held that although Moss’s confessions were
voluntary, see id. at 577-80, they were taken in violation of
West Virginia’s juvenile prompt presentment statute because he
was never presented to a neutral judicial officer, id. at 581.
But because the court held that Ellsworth’s exclusionary rule
did not apply retroactively unless a presentment objection was
made at trial, it determined that only Moss’s third confession
was inadmissible. Id.Before Moss’s second trial, the trial court conducted a
suppression hearing regarding the admissibility of Moss’s first
two confessions. The court admitted the confessions for two
independent reasons: (1) it believed that the West Virginia
Supreme Court’s ruling that the October 28 confessions were
admissible was the “law of the case”; and (2) irrespective of
that ruling, it determined that the confessions did not violate
West Virginia’s juvenile prompt presentment statute. Supp.
Appendix 1-3.
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Following his second trial, the jury again convicted Moss
of three counts of first-degree murder, and the court again
sentenced him to three sentences of life imprisonment without
mercy. The West Virginia Supreme Court subsequently denied his
petition for appeal.
Between 1994 and 2007, Moss filed four habeas petitions in
West Virginia circuit courts. The courts denied each petition,
rejecting Moss’s challenges to the voluntariness of his
confessions and his arguments that counsel in his first trial
was ineffective in failing to raise a prompt presentment
objection to his first two confessions. Further, the West
Virginia Supreme Court denied Moss’s habeas petition filed in
that court.
In 2009, Moss filed a federal habeas petition, arguing in
part that counsel in his first trial was ineffective in failing
to object to the first two confessions on presentment grounds
and that his confessions were involuntary. The state moved for
summary judgment. The magistrate judge recommended granting the
state’s motion and dismissing the habeas petition, and the
district court adopted that recommendation. Specifically, the
district court concluded that it was “not charged with reviewing
the conduct of the petitioner’s counsel at his first trial,
where his convictions were ultimately vacated.” J.A. 2957.
Further, it concluded that Moss did not sufficiently show that
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the state courts’ factual determinations regarding the
voluntariness of his confessions “were incorrect or
unreasonable” or “that the state courts’ decisions concerning
the voluntariness of his confessions were contrary to, or an
unreasonable application of, clearly established federal law.”
J.A. 2945.
Moss appealed and asked this Court for a certificate of
appealability. We, in turn, allowed Moss to present these
issues: (1) whether Moss’s counsel at his first trial was
ineffective in failing to object to the admission of his first
two confessions on the ground that they were taken in violation
of West Virginia’s juvenile presentment law, and (2) whether the
district court independently determined the voluntariness of
Moss’s confession as required by Miller v. Fenton, 474 U.S. 104(1985).
II.
A.
As an initial matter, while the parties agree that the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs Moss’s habeas petition, see 28 U.S.C. § 2254, they
dispute the proper standard of review for his ineffective
assistance of counsel claim. Under AEDPA, federal courts cannot
grant a state prisoner’s habeas petition for any claim the state
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court adjudicated on the merits unless the state court’s
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Moss contends that the state court did not adjudicate the
merits of his ineffective assistance of counsel claim.
Accordingly, he argues that we should not apply AEDPA deference,
but must instead review his claim de novo. See Weeks v.
Angelone, 176 F.3d 249, 258 (4th Cir. 1999) (reviewing de novo
“[w]hen a petitioner has properly presented a claim to the state
court but the state court has not adjudicated the claim on the
merits”). The state, by contrast, asserts that both the state
habeas court and the West Virginia Supreme Court adjudicated the
merits of Moss’s ineffective assistance of counsel claim,
thereby triggering AEDPA’s deferential standard of review. 2
We find it unnecessary to resolve this issue. Even
assuming arguendo that de novo review is appropriate, we
2
The state also argues that Moss waived appellate review of
the proper standard because he did not seek de novo review
before the district court. But “the correct standard of review
under AEDPA is not waivable.” Gardner v. Galetka, 568 F.3d 862,
879 (10th Cir. 2009); see also Brown v. Smith, 551 F.3d 424, 428
n.2 (6th Cir. 2008); Eze v. Senkowski, 321 F.3d 110, 120-21 (2d
Cir. 2003).
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nevertheless conclude that Moss has failed to demonstrate that
his counsel was ineffective.
B.
To establish ineffective assistance of counsel, Moss must
demonstrate that (1) his counsel’s performance fell below an
objective standard of reasonableness and (2) the deficient
performance prejudiced him, meaning that there was “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Turning to Strickland’s first prong, Moss argues that
because the juvenile prompt presentment statute was well-settled
at the time of his first trial, his attorney performed
deficiently by failing to object to Moss’s first two confessions
on that basis. Conversely, the state asserts that counsel
cannot be deemed ineffective for failing to anticipate
Ellsworth’s exclusionary rule. We must agree with the state.
It is well established that an attorney cannot be labeled
ineffective for failing to anticipate a future change in the
law. See United States v. McNamara, 74 F.3d 514, 516-17 (4th
Cir. 1996); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.
1983).
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Although Moss correctly notes that West Virginia’s juvenile
prompt presentment statute existed at the time of his first
trial, Ellsworth was not decided until one year after Moss’s
first trial. Ellsworth held that confessions obtained in
violation of the juvenile prompt presentment statute are
inadmissible if the primary purpose of the presentment delay was
to obtain a confession. Ellsworth, 331 S.E.2d at 508. In
short, failure to comply with the juvenile prompt presentment
statute did not alone render a confession inadmissible at the
time of Moss’s first trial. Moss, 376 S.E.2d at 580. Rather,
prompt presentment was analyzed as one part of the voluntariness
inquiry. Id.; cf. State v. Guthrie, 315 S.E.2d 397, 399 (W. Va.
1984) (stating that for purposes of West Virginia’s adult prompt
presentment statute, “[t]he delay in taking a defendant to a
magistrate may be a critical factor in the totality of
circumstances making a confession involuntary and hence
inadmissible”) (quotation marks and citation omitted). Only
after Ellsworth did West Virginia courts analyze compliance with
the juvenile prompt presentment statute separately from the
voluntariness inquiry. Moss, 376 S.E.2d at 581. Further, the
West Virginia Supreme Court later clarified that Ellsworth’s
exclusionary rule “is not to be applied retroactively to a
confession which was obtained prior to the date of that decision
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where no prompt presentment objection was made at trial.” Id.(citations and quotation marks omitted) (emphasis omitted).
Here, although Moss’s counsel at his first trial did not
object to Moss’s first two confessions on prompt presentment
grounds, he argued that they were involuntary for several other
reasons. While Moss’s counsel should have been aware of the
juvenile prompt presentment requirement, he cannot be deemed
ineffective for failing to anticipate that the statute would
later become an independent basis to exclude a confession and
that he needed to specifically object on presentment grounds to
preserve that issue. See Honeycutt, 698 F.2d at 217.
Accordingly, Moss cannot show that his counsel’s performance
fell below an objective standard of reasonableness. Strickland,
466 U.S. at 687-88. Therefore, Moss’s ineffective assistance of
counsel claim must fail.
C.
Finally, Moss contends that the district court failed to
independently determine whether his confession was voluntary as
required by Miller v. Fenton, 474 U.S. 104 (1985).
In Miller, the Supreme Court held that in the federal
habeas context, whether a confession was voluntary is a legal
question requiring “independent federal determination.” Id. at
112. While Miller predated the enactment of AEDPA, courts have
12
incorporated Miller’s independent determination requirement into
AEDPA’s deferential standard of review. Thus, federal habeas
courts must independently apply federal law to ultimately
determine whether the state court’s voluntariness determination
was contrary to, or an unreasonable application of, that law.
See Williams v. Taylor, 529 U.S. 362, 402-04, 412-13 (2000);
Land v. Allen, 573 F.3d 1211, 1217 (11th Cir. 2009); Lam v.
Kelchner, 304 F.3d 256, 264 (3d Cir. 2002).
In his habeas petition, Moss challenged the state courts’
findings that his October 28 confessions were voluntary as an
unreasonable applicable of clearly established federal law.
Accordingly, the district court reviewed the conflicting
testimony from Moss and the officers who took his confessions
and the state courts’ ultimate decision to believe the officers.
Applying AEDPA deference, the district court concluded that
“[t]he Petitioner has not demonstrated, by clear and convincing
evidence, that the state courts’ factual determinations were
incorrect or unreasonable. Moreover, the petitioner has not
demonstrated that the state courts’ decisions concerning the
voluntariness of his confessions were contrary to, or an
unreasonable application of, clearly established federal law.”
J.A. 2945.
Moss argues that because the district court did not
“mention[] and explain[] the applicable federal law,” Reply Br.
13
at 19, it failed to conduct the independent review required by
Miller. But Moss does not cite, nor did we find, a case holding
that post-AEDPA, Miller requires courts to specifically identify
or explain the applicable federal law. Rather, Section
2254(d)(1) merely requires a federal habeas court to
independently determine whether a state court’s adjudication on
the merits resulted in a decision that “was contrary to clearly
established Federal law, as determined by the Supreme Court of
the United States, or (2) involved an unreasonable application
of clearly established Federal law, as determined by the Supreme
Court of the United States.” Williams, 529 U.S. at 412(quotation marks and citation omitted). This, the district
court has done. Accordingly, we reject Moss’s voluntariness
challenge.
III.
For the foregoing reasons, we affirm the district court’s
order dismissing Moss’s habeas petition.
AFFIRMED
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