Gillman Roddy Long v. United States, 875 F.3d 411

In July 2009 Long was indicted on two counts of aggravated sexual abuse of a child; after a jury trial he was convicted and sentenced to life imprisonment.
During a pre-arrest, non-custodial interview with FBI Agent Sherry Rice (who told Long he was not under arrest), Long said, “I do not want to incriminate myself. I would like to stop talking.” The statement was admitted through Agent Rice’s testimony and referenced in closing; trial counsel did not object.
On direct appeal this court noted the question whether a pre-arrest, pre-Miranda statement of that sort is inadmissible under the Fifth Amendment had not been settled by the Eighth Circuit or the Supreme Court, so the court deferred resolution of Long’s ineffective-assistance claim for a § 2255 proceeding.
Long brought a § 2255 ineffective assistance of counsel claim alleging counsel was deficient for failing to object to admission of the statement (and to a prosecutorial remark about Long’s silence); the district court denied relief after a hearing and Long appealed only the Agent Rice statement issue.
The Eighth Circuit applied Strickland’s two-prong test but resolved only the performance prong, finding counsel’s failure to object was within the wide range of reasonable professional assistance because authority on the admissibility of such pre-arrest statements was split and there was no controlling Eighth Circuit or Supreme Court precedent at the time of trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was constitutionally ineffective for not objecting to admission of Long’s pre-arrest, pre-Miranda statement	Long: Counsel should have objected because some out-of-circuit authority suggested such admissions violate the Fifth Amendment	Government: No clear controlling law; authority was split and no Eighth Circuit or Supreme Court precedent; counsel’s choice was reasonable	Court: Counsel was not ineffective — performance was within professionally competent range given split authority and lack of controlling precedent

United States v. Long, 721 F.3d 920 (8th Cir. 2013) (earlier appeal noting unsettled question about admissibility of pre-arrest, pre-Miranda statements)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance of counsel test)
Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008) (discussing Strickland standards)
Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (standard of review for § 2255 ineffective-assistance findings)
Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (holding use of a pre-arrest statement in prosecutor’s case-in-chief violated petitioner’s rights)
United States v. Davenport, 929 F.2d 1169 (7th Cir. 1991) (holding statements made in a non-custodial interview were admissible and fair game for prosecution)
Ragland v. United States, 756 F.3d 597 (8th Cir. 2014) (recognizing counsel’s performance can be reasonable where authority is split)
United States v. Okatan, 728 F.3d 111 (2d Cir. 2013) (post-trial authority on admissibility referenced by Long but issued after his trial)
Toledo v. United States, 581 F.3d 678 (8th Cir. 2009) (warning against judging counsel with hindsight; evaluate performance based on circumstances at time of trial)