Eric Adam GRUENINGER, Petitioner-Appellant, v. DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
No. 14-7072.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 27, 2015. Decided: Feb. 9, 2016.
813 F.3d 517
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.
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 ultimаtely 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, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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 unreаsonable under
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 vidеo 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 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 questiоns 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 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 оne 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
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. Thе 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 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 uncоnstitutional 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, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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
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 judgment complained of” and refused the petition for appeal. J.A. 354.
C.
On June 12, 2013, Grueninger filed a federal habeas petition under
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, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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
Under
As the Supreme Court has made clear,
III.
A.
Grueninger‘s primary argument is that his counsel was ineffective for failing to move to suppress his confession. 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 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, 114 S.Ct. 2350, 129 L.Ed.2d 362 (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, 100 S.Ct. 1682, 64 L.Ed.2d 297 (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 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, 131 S.Ct. 1388, 179 L.Ed.2d 557 (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 ineffeсtiveness 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 per-
B.
In applying
The Commonwealth appears to argue for a different approach. Under Harrington v. Richter, an unexplained state supreme court judgment may be disturbed under
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).
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.
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-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
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
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 state-court [sic] 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 [104 S.Ct. 2052].
J.A. 347. With due respect to the state court, we find that determination to be objectively unreasonable under
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).
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
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 thеre 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
1.
The Commonwealth‘s primary argument is that Grueninger can establish neither
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 wаs 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).
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 not unambiguously invoke); Johnson v. Harkleroad, 104 Fed.Appx. 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
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 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
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 habe-
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, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (“A confession is like no other evidence.“). This is a case in 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 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 hе 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 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 reported sex-
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
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 comрuter 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.
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 outcоme of his trial, as required to demonstrate prejudice under Strickland, and we therefore affirm the district court order in that respect.13
For the foregoing reasons the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.