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Criminal Practice – Habeas Granted on Ineffective Assistance Claim

Grueninger v. Director, Virginia Dep’t of Corrections (Lawyers Weekly No. 001-029-16, 34 pp.) (Harris, J.) No. 14-7072, Feb. 9, 2016; USDC at Richmond, Va. (Gibney, J.) 4th Cir.

Holding: A man convicted of sexually abusing his 14-year-old daughter wins habeas relief on his claim that his trial counsel provided constitutionally ineffective assistance of counsel by failing to act to suppress his responses to questions posed by an investigator after petitioner asked for a lawyer; the 4th Circuit upholds denial of habeas relief on petitioner’s child pornography conviction, but grants relief on his sexual abuse convictions.

Petitioner’s primary argument is that his counsel was ineffective for failing to move to suppress his confession.

With due respect to the state court, we find its determination to be objectively unreasonable under § 2254(d). There is no question that when the investigator visited petitioner in jail on March 16 to serve new arrest warrants, he questioned petitioner about the charges against him. The investigator’s trial testimony leaves no room for doubt on this point. It is equally plain that the asking of questions about the substance of a case constitutes “interrogation” for Edwards v. Arizona purposes. Here, the investigator’s “express questioning” of petitioner about the charges against him surely qualifies as “interrogation” under Edwards.

The state circuit court rejected petitioner’s ineffective assistance claim on the ground that, because there was no interrogation, petitioner’s statements would not have been suppressed even if his counsel had moved to exclude them under Edwards. The commonwealth does not defend that holding, and we believe the circuit court’s decision involved an unreasonable application of clearly established federal law.

Alternative Grounds

The commonwealth urges us to affirm the dismissal of the ineffective assistance claim on two alternative grounds: (1) the circuit court’s ultimate determination would have been correct because petitioner did not unequivocally invoke his Miranda right to counsel or (2) there was no reasonable probability that the result of his trial would have been different, and so there was no prejudice under Strickland v. Washington.

Trial counsel did not forgo an Edwards objection as a tactical decision; 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 chance was lost, to accept the trial judge’s invitation to object at trial when the confession was introduced.

Petitioner’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. Petitioner made this statement 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.

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.

Defendant’s statements, introduced at trial by way of the investigator’s testimony, were detailed and deeply disturbing. The testimony almost certainly would have left an indelible impression on the court as it conducted its bench trial. The independent evidence against petitioner, while substantial, was not so overwhelming that we can be confident that petitioner would have been convicted of sexual abuse even without his confession. Given the centrality of the confession to this case, we cannot be confident that there is no “reasonable probability” that petitioner’s confession affected the outcome of his trial on the sexual abuse charges.

However, we see no reasonable probability that admission of the confession altered the outcome of petitioner’s trial on the child pornography charges.

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